Opinion
Appellants brought an action challenging the adoption by respondent County of Solano of a hazardous waste management plan (the
The Plan
The Plan adopted by respondent was the culmination of an effort which commenced in March of 1987 with a resolution by the board of supervisors to “prepare a county hazardous waste management plan” for submittal to the DHS for approval pursuant to the Tanner Act. The stated purpose of this Plan was to review and analyze existing hazardous waste disposal facilities, determine the need for additional or expanded facilities, and identify “site selection criteria for new or expanded . . . facilities, to accommodate projected needs.”
Concurrent with the submission of the Plan for approval, a draft environmental impact report was completed and made available for public review and comment in accordance with CEQA requirements. In April of 1989, the FEIR was certified; approval for the Plan was obtained from the board of supervisors in August of 1989, and from the DHS in February of 1990.
As approved, the Plan constitutes an initial or primary working document to be updated and reviewed periodically. The Plan mentions existing hazardous waste quantities and management programs. Existing facilities within the County for treatment, storage and disposal of hazardous waste are described, as are “out-of-County” facilities to which hazardous waste produced within the County is exported. The Plan also projects future hazardous waste quantities from all sources, factoring in anticipated waste source reductions, and concludes that the County will have a projected capacity of zero in existing faсilities and a possible annual “capacity shortfall” by the year 2000. Various future scenarios are suggested—depending upon continued operation of existing County facilities, which currently accept hazardous waste from outside the County—and options are delineated. Among the options stated are identification of out-of-state facilities to receive residual wastes and a new facility in the county to serve as a residuals repository for
The Plan contains a siting analysis of treatment, storage and disposal (TSD) facilities, including the regulatory context of future facility proposals, the criteria for siting proposals in accordance with DHS guidelines, and “general areas” within the County which meet the stated criteria. 4 Relying upon DHS guidelines, as modified slightly to suit the particular needs and characterizations оf the County, the Plan describes the siting criteria, which are divided into the following categories: location specific criteria; high hazard criteria; public safety criteria; and physical limitations of the site area.
The Plan then applies the siting criteria to various areas of the County and designates those areas with potential suitability for siting of hazardous waste facilities under all the stated criteria, as well as those areas which meet siting criteria with “risk assessments and/or engineering measures,” and other areas excluded from possible siting consideration. 5 The Plan concludes that the County has locations which potentially or conditionally meet siting criteria for both TSD facilities and residuals repositories. The primary acceptable area falls within the southeastern part of the County and is known as Montezuma Hills.
The Plan does not select or recommend any specific sites for hazardous waste disposal facilities. Rather, the Plan designates certain areas in the County which have beеn identified as potentially consistent with siting criteria for TSD facilities. It notes that these are general areas only and not recommended sites. The Plan states, “Actual sites proposed for future facilities will be given close scrutiny under the County and appropriate city’s development review process as well as federal and state review . . . .” The
The Plan contains policies and programs for future management and disposal of hazardous wastes. One of these policies is to ensure adequate facility capacity by determining what additional waste management facilities are appropriate, if any, for location in the County. Another stated policy is to “ensure that existing and future hazardous waste management facilities . . . in Solano County are developed and operated in an environmentally sound manner through appropriate management, legislation, enforcement and the environmental impact process (California Environmental Quality Act).”
The Plan commits the County to work towards fair-share agreement among counties, whereby each county takes responsibility for its fair share of waste management. To implement this policy, the Plan advises that if the siting of a particular type of hazardous waste management facility needed in the county is not environmentally appropriate or economically viable, the county shall seek to reach an agreement with one or more other jurisdictions to facilitate the siting of a larger, environmentally appropriate and economically viable facility (or facilities) to be located in the county or elsewhere.
The Plan further warns that some TSD facility impacts may be difficult to mitigate. In addition to the direct costs for increased emergency response, inspection, infrastructure, and other county services, the Plan recognizes that TSD facilities impose a number of indirect impacts. “The siting of a TSD facility, particularly a residuals repository, may impose long-term or permanent changes in land-use patterns. These changes will affect not only the facility and its immediate vicinity, but also areas the public may view as deleteriously altered by the facility’s presence. . . . Although mitigation of many of these may be addressed during the permitting and CEQA process, long-term prediction of all impacts is not possible, even assuming well-operated facilities.”
The Plan is characterized as a “first assessment of County needs and resources” to “serve as a strong foundation for an ongoing process.” It is contemplated that the Plan will be reviewed and updated periodically.
The Final Environmental Impact Report
The FEIR describes the Plan as the “primary planning document for hazardous waste management in the County.” The FEIR notes that the Plan itself would have no direct adverse impacts on the environment and should
The FEIR summarizes the “key features” of the project under evaluation-—that is, the Plan. The siting criteria contained in the Plan are reiterated in the FEIR, as are the areas which potentially meet those criteria. The policies and recommended programs mentioned in the Plan are also restated.
The FEIR describes the following alternatives to be evaluated: adoption of the Plan; no adoption of a hazardous waste management plan (the No Project Alternative); adoption of a different hazardous waste management plan which limits facilities to local needs only (the Local Needs Alternative); and a plan which would exclude the siting of any new facility in the County (the No Facilities Alternative). The FEIR notes that without a hazardous wastе management plan, siting of future facilities “would probably be less difficult,” but “the net effect would be a reduction in the County’s control over facility siting” and loss of the “environmental benefits” associated with the siting criteria stated in the Plan. “The Local Needs Alternative would have the effect of discouraging the import of hazardous waste for treatment, storage or disposal within Solano County, but would encourage the siting and operation of new treatment and storage facilities to manage hazardous waste generated in Solano County.” The FEIR concludes that “Volumes of hazardous waste generated in Solano County, however, may not be large enough to support treatment or disposal facilities, and it is likely that all Solano wastes would be exported for treatment and disposal under this alternative.” According to the FEIR, the No Facilities Alternative would require preparation of a different hazardous waste management plan which excludes new facilities “through changes in facility siting criteria and other restrictions.” The FEIR states that “it is unknown if adequate out-of-County treatment, storage and disposal facility capacity would be available for waste generated in-County.”
The environmental setting and potential impacts due to adoption of the Plan, including the potential for future facility siting in accordance with the stated siting criteria, are discussed in the FEIR. General impacts upon various articulated resource categories associated with operation of transfer stations, recycling facilities, incinerators, stabilization facilities and residuals
For each of the alternatives, the FEIR also notes the possible significant irreversible adverse environmental impacts, “including potential loss of biotic habitat and long-term оr permanent change in the character of land use.” Mitigation measures for such irreversible environmental impacts are mentioned. The FEIR generally indicates that mitigations will be more effectively implemented under the Plan, which gives the County a greater degree of control over siting and management of hazardous waste facilities. The FEIR again posits that each specific facility may have different potential consequences, such that specific irreversible impacts and mitigation measures are more appropriately discussed in “future CEQA documents for any proposed facility.” The FEIR adds the following caveat: “The siting and approval of specific hazardous waste facilities will require separate environmental reviews that will likely take the form of Project EIR’s [me] (Section 15161, CEQA Guidelines).”
Discussion
Appellant argues that the FEIR does not comply with CEQA requirements. Appellant’s position is that the Plan has effectively designated the Montezuma Hills area as one of the few regions within the Cоunty which satisfies the siting criteria for hazardous waste facilities without further risk assessments or engineering measures. Appellant submits that the FEIR is flawed in its failure to provide an adequate description of the project—which, claims appellant, narrowed “acceptable sites to the Montezuma Hills area”—and does not contain the findings demanded by CEQA to support the decisions made in the Plan.
Our analysis must proceed from recognition of fundamental principles underlying CEQA, foremost of which is that “the Legislature intended the act ‘to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ [Citation.]”
(Laurel Heights Improvement Assn.
v.
Regents of University of California
(hereafter
Laurel
Heights) (1988)
“The EIR is an informational document with the stated purpose of providing public agencies and the public with ‘detailed information about the effect which a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.’ [Citations.]”
(City of Santee
v.
County of San Diego
(1989)
“Judicial review of administrative decisions under CEQA is governed by sections 21168 and 21168.5 of the Public Resources Code. Under
Our limited function is to determine “ ‘whether policymakers have been adequately informed of the consequences of their decisions, and whether the public has sufficient information to evaluate the performance of their elected officials.’ [Citation.]”
(Schaeffer Land Trust
v.
San Jose City Council, supra,
I. Adequacy of Project Description
Appellant contends that the “fundamental flaw” in both the FEIR and the Plan is an inadequate, vague and uncertain description of the project under evaluation. Appellant characterizes the project description in the FEIR as “ ‘vague and shifting,’ ” and even internally inconsistent in its treatment of future siting decisions. The result, submits appellant, is a FEIR which fails to define decisions or make the requisite findings as to environmental impacts, possible mitigations and project alternatives. Thus, claims appellant, has the “entire CEQA process” been undermined.
An accurate description of the proposed project is “the heart of the EIR process.”
(Sacramento Old City Assn.
v.
City Council
(1991)
To further the objectives of CEQA, the term “project”
8
is defined broadly as any “activity which is being approved and which may be subject to several discretionary approvals by governmental agencies.” A project encompasses “the whole of an action, which has a potential for resulting in a physical change in the environment, directly оr ultimately . . . .” (Guidelines, § 15378, subds. (a), (c);
McQueen
v.
Board of Directors, supra,
CEQA contemplates consideration of environmental consequences at the “ ‘earliest possible stage, even though more detailed environmental review may be necessary later.’ ”
(Leonoff v. Monterey County Bd. of Supervisors
(1990)
The project described in the FEIR is respondent’s adoption of a hazardous waste management plan, which was incorporated into the County’s general plan. A comparison of the FEIR and the Plan—which were circulated and considered concurrently—shows a consistency of description of the project. As accurately described in the FEIR, the Plan serves as a preliminary guide or “first assessment” of the County’s present and future hazardous waste management needs. An overview of the Tanner Act and DHS guidelines for preparation of hazardous waste management plans—in accordance with which the Plan has been prepared—is found in the FEIR. Current facilities are assessed; projections are provided for future needs. Most significant is the statement in the FEIR of recommended policies and siting criteria which the Plan provides. The FEIR further adopts from the Plan the maps depicting areas within the County which meet the siting criteria. In all respects the project stated in the Plan is faithfully reiterated in the FEIR.
Appellant’s complaint is that the FEIR fails to provide a description of potential future facilities or the “degree to which project-level decisions” have been made by the County. Appellant insists that such reasonably anticipated future projects were improperly omitted from consideration by the County.
The flaw in appellant’s argument is that the Plan makes no commitment to future facilities other than furnishing siting criteria and designating generally acceptable locations. While the Plan suggests that new facilities may be needed by the County, no siting decisions are made; the Plan does not even determine that future facilities will ever be built. Both the Plan and the FEIR consistently state that no actual future sites have been recommended or proposed. For that reason, the FEIR is intended to be a “program EIR” or “tiering EIR,” with subsequent “project EIR’s” to follow in the event specific, identified facilities are proposed in the future. 9
The omission of any description of specific potential future facilities— such as in the Montezuma Hills area—does not, in our view, render the FEIR
“CEQA requires consideration of the potential environmental effects of the project actually approved by the public agency, not some hypothetical project.”
(McQueen
v
Board of Directors, supra,
While we agree with appellant that additional hazardous waste facilities in the County may be a foreseeablе consequence of the Plan, any
CEQA requires only that an EIR discuss “[t]he significant environmental effects of the proposed project.” (§ 21100, subd. (a);
Village Laguna of Laguna Beach, Inc.
v.
Board of Supervisors
(1982)
II. Adequacy of the Findings
We next consider appellant’s claim that the EIR contains inadequate findings on environmental impacts, mitigation measures, and alternatives.
In reviewing the adequаcy of the findings in the FEIR, we are guided by the principle that EIR requirements must be sufficiently flexible to encompass vastly different projects with varying levels of specificity.
(City of Antioch
v.
City Council, supra,
A. Findings on Environmental Impacts
Appellant complains that the findings on environmental impacts and the environmental setting were “artificially truncated” in the FEIR due to lack of “a reasonable forecast” of the specific facilities required to meet stated future hazardous waste treatment and disposal needs. Appellant’s position is that the Plan, if implemented by construction of a new facility, “logically operates with reasonable certainty to ensure that when a specific facility is proposed, it will be located in Montezuma Hills.” 11 Thus, the FEIR is deficient in its failure to discuss the environmental impacts of locating a hazardous waste facility in the Montezuma Hills area.
We find no flaws in the findings on environmental impacts. For the various “resource categories,” and for each alternative, the FEIR discusses in general terms the environmental impacts and mitigation measures included in the Plan; also mentioned are the beneficial impacts of proceeding in accоrdance with the siting criteria stated in the Plan. Cumulative impacts and significant irreversible environmental impacts are discussed in the same manner. The FEIR states that the Plan could allow certain projects to proceed, such as potential future hazardous waste facilities, but properly defers more specific environmental reviews—presumably in the nature of project EIR’s—until such facilities, if any, are actually proposed.
(No Oil, Inc.
v.
City of Los Angeles, supra,
B. Findings on Mitigation Measures
Appellant also objects to the findings in the FEIR on mitigatiоn measures and feasible alternatives. Our high court has declared: “The core of an EIR is the mitigation and alternatives sections.”
(Citizens of Goleta Valley
v.
Board of Supervisors, supra,
As to the requirement of findings on mitigation measures, appellant submits that the FEIR is deficient in several respects, the first being that the findings on mitigation measures are vague, inconclusive, and even inconsistent, as a result of respondent’s failure to adopt more specific findings until a particular hazardous waste facility is proposed. We have no dispute with appellant’s position that an environmental assessment, including a statement of mitigation measures, may not be deferred until a future study or project. (Guidelines, § 15070, subd. (b)(1);
Sundstrom
v.
County of Mendocino, supra, 202
Cal.App.3d at pp. 306-307.) Mitigation measures must be stated for each significant impact identified in the EIR. (Guidelines, § 15126, subd. (c).) We do not agree with appellant, however, that the FEIR ignored mitigation measures or stated them inconclusively, given the broad, nebulous scope of the project under evaluation. In the absence of a specific proposal for a facility, mitigation findings properly focused on use of the stated siting
Once again, we find significant respondent’s adoption of the siting criteria and other mitigation measures to be applied to any future projects. Under the Plan, for those mitigation measures which the County cannot presently formulate precisely absent a proposal for a specific facility, a firm commitment has been made to future mitigation of significant impacts. Where, as here, devising more specific mitigation measures early in the planning process is impractical, “ ‘the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval. Where future action to carry a project forward is contingent on devising means to satisfy such criteria, the agency should be able to rely on its commitment as evidence that significant impacts will in fact be mitigated.’ ”
(Sacramento Old City Assn.
v.
City Council, supra,
Appellant also complains that the FEIR merely “recommends,” rather than adopts, some mitigation measures, and “does not identify whether impacts will be mitigated to less than significant levels.” Under section 21081, a public agency must incorporate mitigation measures, or make other approved findings, before adopting a project with identified significant environmental impacts.
(Citizens for Quality Growth
v.
City of Mt. Shasta, supra,
C. Findings on Alternatives
Next, we consider appellant’s objections to the findings on alternatives, with the following fundamental principles in mind: “An EIR must ‘[d]еscribe a range of reasonable alternatives to the project or to the location of the project, which could feasibly attain the basic objectives of the project
“CEQA establishes no categorical legal imperative as to the scope of altеrnatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose.”
(Citizens of Goleta Valley
v.
Board of Supervisors, supra,
The FEIR discusses three alternatives in addition to the Plan: the No Project Alternative; the Local Needs Alternative; and the No Facilities Alternative. Each of the alternatives is described in the FEIR, and for each alternative, mitigatiоn measures are stated for each resource category.
Appellant contends that the FEIR contains an “inadequate range of alternatives.” Appellant’s position is that additional alternatives should have been included in the FEIR, such as locating facilities in other areas—perhaps even out-of-county—or placing limits upon size, type and design of facilities.
We conclude that the FEIR, while neither all-encompassing nor perfect, considered a reasonable range of alternatives under the circumstances presented. The discussion of alternatives in the FEIR was tailored to the nature
We further conclude that the County was not required to make findings regarding the feasibility of the stated alternatives. CEQA does not require the responsible agency to consider the feasibility of environmentally superior project alternatives identified in the EIR if described mitigation measures will reduce environmental impacts to acceptable levels.
(Laurel Heights, supra,
D. Statement of Overriding Considerations
For the same reason, we reject appellant’s contention that the County was obligated under CEQA to include in the FEIR a statement of overriding considerations. According to CEQA Guidelines, section 15093, subdivision (b), a statement of overriding considerations must be provided “[w]here the decision of the public agency allows the occurrence of significant effects which are identified in the final EIR but are not at least
III. Adoption of a Mitigation Monitoring Program
Next, appellant argues that respondent failed to adopt an adequate mitigation monitoring program as CEQA demands in section 21081.6, which provides: “When making the findings required by subdivision (a) of Section 21081 ... the public agency shall adopt a reporting or monitoring program for the changes to the project which it has adopted or made a condition of project approval in order to mitigate or avoid significant effects on the environment. The reporting or monitoring program shall be designed to ensure compliance during project implementation. . . .” Appellant maintains that respondent violated section 21081.6 in three ways: 1) by failing to “set forth a current program to monitor or report on each mitigation measure or alternative”; 2) by deferring development of monitoring or reporting programs for many of the cited mitigation measures and alternatives; and 3) by omitting “monitoring or reporting programs to ensure compliance during project implementation with each and every mitigation measure or alternative.”
We conclude that respondent has implemented a mitigation monitoring program which meets CEQA requirements for the project adopted by the Plan. The adequacy of a mitigation monitoring program, like a description of mitigation measures and project alternatives, must be assessed in accordance with the “rule of reason,” which requires “what is reasonably feasible.”
(Kings County Farm Bureau
v.
City of Hanford, supra,
IV. Sufficiency of Evidence to Support the Findings
Appellant further challenges the substance of the FEIR by arguing that inadequate mitigation measures and alternatives are stated to alleviate identified environmental effects. Appellant submits that the mitigation measures stated in the FEIR are vague, do not in fact mitigate the identified impacts—at least not to the required level of insignificance—and are either inconsistent or were not expressly adopted. Appellant further claims that an inadequate range of alternatives is discussed in the FEIR.
Our review of the FEIR findings is constrained by the substantial evidence rule. Our role is not to determine the correctness of the findings on mitigation of environmental effects, but only to assess “whether they are supported by substantial evidence . . . .”
(Laurel Heights, supra,
Any vagueness or perceived inconsistency in the mitigation measures described in the FEIR is, we find, inherent in the discussion of general, countywide impacts in a planning program which has not approved a particular site or facility for development. Thus, many specific mitigation measures can only be “recommended” until a specific facility is proposed. The generic description of mitigation measures and alternatives is, in our view, appropriate to the present, preliminary status of the hazardous waste management and disposal program represented by the Plan. We further find no inconsistencies in the statement of mitigation measures, other than those necessarily caused by the lack of site-specific decisions and the speculative nature of any possible future projects. The general discussion of mitigation
V. Consistency With Respondent’s General Plan and the Tanner Act
Next, we consider appellant’s contention that designation of the Montezuma Hills area as a potential site for a hazardous waste disposal facility conflicts with the Tanner Act and the County’s general plan. DHS guidelines implemented under the Tanner Act indicate a preference for location of facilities in industrial rather than rural areas, and state that hazardous waste management plans “should be consistent with” existing local plans. Montezuma Hills is included within the agriсultural lands designation in respondent’s general plan. Therefore, complains appellant, the conclusion in the Plan that Montezuma Hills meets the siting criteria adopted from the Tanner Act Guidelines is “unsupported by the record” and violates respondent’s general plan. The trial court determined that the Plan is not inconsistent with the general plan, and we cannot disturb that finding absent a showing of abuse of discretion.
(Fund for Environmental Defense
v.
County of Orange
(1988)
We reiterate that the Plan adopts siting criteria and designates general areas within the County which potentially meet those criteria; it does not specify that Montezuma Hills, or any other particular location, will be the site of a hazardous waste facility. Zoning regulations are considered as an applicable criterion. It is noted in the Plan that facilities may be located in rural areas, “but not those designated as Prime Agriculture ... as defined in adopted general, regional or state plans.”
13
The Plan also states that general plan zoning and land use designations in effect at the timе an application for a facility is received “will be applicable in determining siting consistency,” and contemplates possible rezoning of agricultural zone districts to special industrial zones. The Tanner Act guidelines and respondent’s general plan allow for amendment of existing plans to accommodate waste facilities. A
Appellant’s final contention is that the trial court erred by dismissing, sua sponte, the causes of action against the DHS. Appellant complains that dismissal of the severаble causes of action against the DHS was erroneous absent demurrer or motion by that party. We find upon review of the record that the trial court did not dismiss appellant’s action against the DHS on procedural grounds, but rather denied the relief requested as part of the substantive ruling in the case.
14
Upon a finding by the trial court that the FEIR was not defective, the causes of action against the DHS for equitable relief were rendered moot and were, therefore, properly dismissed.
(Steelgard, Inc.
v.
Jannsen
(1985)
The judgment is affirmed in its entirety.
Strankman, P. J., and Dossee, J., concurred.
Notes
For the sake of clarity and convenience, we will henceforth refer to appellants in the singular; respondent County of Solano will be referred to as respondent or the County; respondent Department of Health Services will be referred to as the DHS.
A11 further statutory references are to the Public Resources Code unless otherwise indicated.
A facility to serve only the County is not deemed economically feasible.
The Tanner Act provides that among the elements which must be included in a hazardous waste management plan submitted to the DHS are “[a]n identification of those hazardous waste facilities that can be expanded to accommodate projected needs and an identification of general areas ... for new hazardous waste facilities determined to be needed. In lieu of this facility and area identification, the plan may instead include siting criteria to be utilized in selecting sites for new hazardous waste facilities. If siting criteria are included in the county hazardous waste management plan, the plan shall also designate general areas where the criteria might be applicable.” (Health & Saf. Code, § 25135.1, subd. (d)(6).) Thus, counties are given the option of identifying facilities and areas or providing siting criteria.
Under DHS guidelines, any hazardous waste disposal plan submitted under the Tanner Act is expected to show that the County has actual areas which meet siting criteria.
The resource categories are as follows: Air quality; water quality and hydrology; geology and soils; biotic resources; visual resources; transportation and circulation; noise; utilities and service; historic and archaeological resources; and general public sector impacts.
All references to Guidelines are to the CEQA Guidelines, promulgated by the State Resources Agency and found in title 14 of the California Code of Regulations, section 15000 et seq. The Guidelines are accorded great weight by the courts in interpreting the provisions of CEQA.
(Citizens of Goleta Valley
v.
Board of Supervisors
(1990)
“The term ‘project’ does not mean each separate governmental approval, [f] . . . Where the lead agency could describe the project as either the adoption of a particular regulation . . . or as a development proposal which will be subject to several governmental approvals . . . the lead agency shall describe the project as the development proposal for the purposе of environmental analysis.” (Guidelines, § 15378, subds. (c) and (d); see also
Fullerton Joint Union High School Dist.
v.
State Bd. of Education
(1982)
As observed in
Laurel Heights,
section 15168, subdivision (a) of the Guidelines explains “that an agency can use a ‘program EIR,’ for ‘a series of actions that can be characterized as one large project and are related either: (1) Geographically, (2) As logical parts in the chain of contemplated actions, ... or (4) As individual activities carried out under the same authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways.’ Section 15385 of the Guidelines provides for
Once “the required findings as to environmental impacts have been made, a public agency may still adopt a project with adverse environmental consequences, provided it either adopts mitigation measures or finds that overriding considerations justify the project notwithstanding unmitigated adverse consequences. [Citations.]”
(No Slo Transit, Inc.
v.
City of Long Beach
(1987)
This is so, maintains appellant, because “[o]ver 90% of the area designated to satisfy the siting criteria was located in the 40,000 acre Montezuma Hills tract.”
The Guidelines also prohibit approval of a project “for which an EIR was prepared unless the agency has ‘(A) Eliminated or substantially lessened all significant effects on the environment where feasible . . . , and [|] (B) Determined that any remaining significant effects on the environment found to be unavoidable ... are acceptable due to overriding concerns ....’”
(Citizens of Goleta Valley
v.
Board of Supervisors, supra,
Montezuma Hills is not designated as a prime agricultural area.
Appellant’s claims against the DHS were included to ensure that the DHS reviews any amendments to the Plan necessitated by this action.