Rodeo Citizens Ass'n v. Cnty. of Contra CostaRodeo Citizens Ass'n v. Cnty. of Contra Costa
On appeal, Citizens contends the trial court erred in rejecting its additional arguments that the project description and the analysis of greenhouse gas emissions and environmental hazards fail to comply with the requirements of the California Environmental Quality Act (CEQA) ( Pub. Resources Code,
Background
Through a series of steps (separation, conversion, purification and blending), oil refineries process crude oil into numerous usable products. Crude oil is the basic petroleum feedstock
Phillips' "San Francisco refinery" has two facilities: one near Rodeo and the other near Santa Maria. The Santa Maria refinery processes mainly heavy crude oil, then sends the semi-refined product via a 200-mile pipeline to the Rodeo refinery for "upgrading into finished petroleum products." The Rodeo refinery, at issue in the present action, occupies 1,100 acres. A 300- to 600-foot wide strip of undeveloped land serves as a buffer between the Rodeo refinery and the nearest residential area. The Refinery is able to process "a wide variety of crude oil feedstocks" from heavy to light into finished petroleum products. In addition to the crude oil received by pipeline from the Santa Maria refinery, the Rodeo refinery also receives crude oil from a variety of domestic and foreign crude sources delivered by ship to its Marine Terminal on San Pablo Bay. Finished products are shipped by rail from the refinery for sale.
The process of refining crude oil produces a byproduct referred to as refinery fuel gas that contains, among other things, commercial quantities of propane and butane. As set forth in the EIR, "Most refineries recover liquid
In June 2012, Phillips submitted its application for a land use permit in connection with the proposed Propane Recovery Project (project).
In June 2013, the county released a draft EIR (DEIR) for the project. In November 2013, following a public comment
On February 2, 2015, the county zoning administrator recommended that the board of supervisors certify the RFEIR. The following day the board certified the RFEIR and approved a land use permit and a mitigation monitoring reporting program for the project.
On March 5, 2015, Citizens filed a petition for writ of mandate challenging the county's approval of the project and certification of the RFEIR. Citizens argued that the project description is inaccurate, that the RFEIR overlooks the increased risk of accidents from train derailments or explosions as a result of the project, and that the analysis of public health impacts, cumulative impacts, air quality impacts and impacts from emissions of greenhouse gases
Discussion
1. Project Description
A "project" under CEQA is "the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment." (CEQA Guidelines,
Citizens contends the RFEIR incorrectly defines the project to include only the recovery and sale of propane and butane from refinery fuel gas. It asserts the project description is "defective because it fail[s] to disclose that the project will involve the more frequent processing of nontraditional crudes containing higher levels of propane, butane, and contaminants."
According to the RFEIR, the refinery is "currently able to process a wide variety of crude oil feedstocks based on its current operating configuration and existing permits. The proposed project would not affect that ability, nor would it have any effect on the types and/or quantities of crude oil feedstocks that can be processed at the refinery. Regardless of whether the project is approved, the refinery would still be able to process the same variety of crude oils that are processed currently and allowed by current permits." The RFEIR continues, "the project does not propose to increase the production of propane or butane at the refinery, nor does the project propose to add, change or modify operation of other process units, such as the coker, at the refinery.... [T]he project would not require the refinery to change the basic feedstocks that are currently received and processed at the refinery."
Citizens' argument regarding the RFEIR's purported failure to disclose the alleged switch to heavier crude oil feedstocks was raised during the public comment period and addressed directly in Master Response 2.4: "Many commenters on the RDEIR have reiterated concerns, theories, and assertions expressed by commenters on the 2013 DEIR and the 2013 FEIR that the refinery, via the proposed project, is seeking to change or would be required to change its current crude feedstocks, and that the proposed project is a deliberate action intended to support the implementation of this change. [¶] These concerns include such issues as the source of the crude, e.g., Canadian tar sands, or new crudes produced in North America such as the Bakken crudes from North Dakota and other similar new feedstocks, the potential effects from extracting these crudes, and assertions about what potential effects using these crudes as feedstocks for the refinery could have. [¶] Over the past several years there has been extensive concern over projects which propose the extraction of crude oil from tar sands in Canada and other controversial sources, or which would bring new sources of crudes to refineries in the United States, including California, via new pipelines or by rail. The county acknowledges these public concerns and has conducted the environmental analysis presented in the RDEIR with such concerns in mind as is required by CEQA. However, it is important to note that since first presented to the county by Phillips 66 in 2012, the description of the
Citizens only weakly contests the accuracy of the data cited in the Master Response. It argues in a footnote that "the project appears to be designed to accommodate far more [liquid propane gas] than exists in the refinery's current feedstocks. Even if these limits are design limits, not recovery goals, the fact that the project is designed to recover such large amounts of [liquid propane gas] is yet more evidence that a new crude slate, containing larger quantities of [liquid propane gas], is something that Phillips 66 contemplates processing, and that the county could have foreseen, or at a minimum, should have analyzed." Among other things, Citizens cites a report by Greg Karras, a senior scientist with Communities for a Better Environment, which calculates, "based on publicly verifiable, plant-specific data for [liquid propane gas]
Citizens also argues that public statements by Phillips executives are inconsistent with statements in the RFEIR that the project would not "have any effect on the types and/or quantities of crude oil feedstocks that can be processed at the refinery." Citizens cites statements made by Phillips officers to shareholders and on its website that seem to indicate that Phillips intends to shift to heavier crude feedstock at the refinery. The documents include, among other things, a 2013 map of "Phillips 66 Advantaged Crude Activities" which shows Phillips's "planned shipments of tar sands and Bakken crude to the Rodeo Refinery by marine vessel from the Pacific Northwest, and shipments of tar sands crude to the Santa Maria Facility by rail"; a statement by Phillips' chief financial officer presenting plans for importing cost-advantaged crudes to the San Francisco Refinery "via rail cars, and then also going over to the waterfront and barging;" and news articles reporting that Phillips had "begun moving cut-price Canadian crude to its California refineries." Citizens also notes that Phillips has sought permits for infrastructure projects that would enable tar sands and Bakken crude oil deliveries by marine vessel at the refinery and tar sands crude deliveries by rail to its Santa
In short, the RFEIR demonstrates that the proposed project to enable Phillips to recover for sale butane and propane from its refinery fuel gas will not increase its
For this reason, Citizens' reliance on Communities for a Better Environment v. City of Richmond (2010)
The City of Richmond court agreed that the project description was inadequate and misleading because it gave conflicting signals to decision
The trial court found the present case distinguishable from City of Richmond in
2. Greenhouse Gas Emissions
The RFEIR concludes that the proposed project would result in a net decrease in operational greenhouse gas emissions. The RFEIR explains that "emissions reductions associated with replacing propane and butane combustion emissions with natural gas combustion emissions more than compensate for project-related increases of [greenhouse gas] emissions associated with the proposed new boiler, increased rail activity, increased commuter trips and increased electrical demand." Citizens does not challenge this finding on appeal. Rather, it contends the RFEIR is inadequate insofar as it fails to consider greenhouse gas emissions "resulting from the combustion of the propane and butane that will be captured by the project and sold to downstream users."
With respect to the use by purchasers of the downstream propane and butane, the RFEIR states, "Combustion of propane and/or butane as a fuel source results in [greenhouse gas] emissions; however, propane and butane also have non-fuel uses, described below, that generate negligible [greenhouse gas] emissions. Due to the dynamic nature of the propane and butane marketplace, Phillips 66 cannot be certain how the propane and butane it would manufacture would ultimately be used; therefore, quantification of the associated net [greenhouse gas] emissions would be speculative and inclusion of such information in an EIR is precluded by CEQA Guidelines § 15145." The RFEIR continues, "Because operations of the refinery have not yet captured and/or sold propane, Phillips does not currently have a defined list of wholesale companies that may purchase the product or retailers to whom they may then sell the product. It is also not possible to determine precisely what the end use of the product would be, what existing resource it may replace, and whether there would be any overall change in market demand or supply as a result of the propane sold by Phillips 66. However, some examples of well-known uses made of propane are discussed below. [¶] Propane is considered an alternative fuel because when it is combusted, it has lower [greenhouse gas] emissions than other fuels, such as coal, home heating oil, fuel oil, diesel,
With respect to butane, the RFEIR states, "Butane has been sold by the refinery to wholesalers since the 1970s. Currently, butane is shipped via rail from the refinery. The most recent wholesale purchaser has advised the refinery that the most common uses its customers make of butane are chemical blending, chemical feedstock, gasoline blending (additive), or gasoline feedstock.... When blending into chemicals there may be no combustion, and therefore no generation of [greenhouse gas] emissions. Because combustion of butane produces lower [greenhouse gas] emissions than combustion of gasoline, combustion of the blended gasoline produces lower [greenhouse gas] emissions than combustion of gasoline that has not been blended with butane.... Without knowing the amounts of butane ultimately used in different applications, the emissions consequences of butane use cannot be calculated without undertaking a substantial amount of speculation. Because of uncertainty surrounding end-use, it also cannot be determined how the capture and sale of the additional butane resulting from the proposed project would affect the overall market and use of butane."
Contrary to Citizens' argument, the failure to quantify the greenhouse gas emissions from the downstream uses of the recovered propane and butane under these circumstances does not violate CEQA. " 'CEQA gives lead agencies discretion to design an EIR ...' [citation] and the agency is not required to conduct every recommended test or perform all requested research or analysis [citation]. 'If, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.' [Citation.] An EIR is required to evaluate a particular environmental impact only to the extent it is 'reasonably feasible' to do so. [Citations.] More generally, 'the adequacy of an EIR is determined in terms of what is reasonably feasible, in light of factors such as the magnitude of the project at issue, the severity of its likely environmental impacts, and the geographic scope of the project.' " (
Comments by the Air District provide strong support for the county's conclusion. The Air District objected to the November 2013 FEIR because it did not adequately analyze the project's emission sources and emission estimates.
3. Public and Environmental Hazard Impacts
Section 4.6 of the RFEIR analyzes the proposed project's impacts on the public and the environment from the handling and transportation of hazardous materials. With respect to impacts from the operation of the project, the RFEIR states, "Refinery operations involve the processing and handling of substances that are classified as combustible and/or flammable with the potential for fires and explosions. Refinery operations also involve the processing and handling of substances that are acutely toxic with the potential of releasing toxic vapors. The risk to the public is measured in terms of the likelihood or probability of an accident and the severity of the consequences of any such accident.... [¶] Hazards associated with the proposed project
As relevant to the present appeal, the RFEIR adopts the following standards of
With respect to standard (c), the RFEIR states summarily, "The proposed project would be entirely constructed and operated within the refinery. There are no existing or proposed schools within one-quarter mile of the project area.... Therefore, there would be no new impact under this criterion." According to the RFEIR, the Bayo Vista Child Development Center is located "approximately 0.5 mile southwest of the site of the Propane Recovery Unit" and approximately 3,000 feet (.57 miles) from the existing rail spur on which propane-filled tank cars would be staged. Citizens does not dispute the accuracy of these measurements, but insists that the RFEIR omits the fact that the child care center is less than 500 feet from the rail lines on which the propane and butane will be transported from the refinery. As the
With respect to the analysis of transportation impacts under standard (a), the RFIER concludes the project would not create a significant hazard to the public or environment through the routine transport of hazardous materials. To evaluate the potential risk, the county performed a "Quantitative Risk Analysis which takes into account the consequences of accidental releases as well as the frequency with which such releases could occur. The consequences involved in the releases are modeled with the computer model CANARY by Quest®..., which utilizes parameters such as composition information, environmental conditions, and release configuration, combined with submodels for thermodynamics, heat transfer, and fluid dynamics in order to perform accurate simulations of the release, dispersion, and potential ignition of the fluid. The consequence analysis developed through CANARY is then combined with published data about release frequencies to develop a complete picture of the risk profile posed by the current rail transport of butane and the proposed rail transport to butane and propane." The results of the risk analysis "are presented in Figure 4.6-4 as risk transects and show the risk posed by the current rail transport of butane and the proposed rail transport of butane and propane as a function of the distance from the rail line. The rail line is located at zero (0) on the x-axis. The distance away from the rail line is represented as the positive and negative values on the x-axis. As would be expected, the risk associated with the rail transport of butane and propane decreases as one moves away from the rail line. [¶] While BLEVEs are a dramatic event, they are
Although the RFEIR does not specifically address how the transport of the project's hazardous materials might impact the child care center, Figure 4.6-5 shows that the risk zone for rail transport under the proposed project, without the risk of highly improbable BLEVEs, extends approximately 80 meters (262 feet) from the railroad tracks. The child care center, located 500 feet from the tracks, is safely beyond this distance. Contrary to Citizens' argument, the county was not required to include additional graphics "overlaying the[ ] transects on a map" which depicted the location of the child care center in relation to the risk zone.
Citizens also argues that the RFEIR fails to properly analyze the project's contribution to the cumulative risk of rail-related accidents. "We review an agency's decision regarding the inclusion of information in the cumulative impacts analysis under an abuse of discretion standard. 'The primary determination is whether it was reasonable and practical to include the projects and whether, without their inclusion, the severity and significance of the cumulative impacts were reflected adequately.' " ( Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008)
The cumulative impacts section of the RFEIR (section 5.4) and specifically section 5.4.3.6 relating to hazards and hazardous materials states only that because the proposed project would not result in significant hazards-related impacts, "routine operations would not contribute cumulatively to hazards-related impacts." That section does not address cumulative impacts relating to transportation risks. In its comments to the RDEIR, Citizens questioned this omission and "provided lists of projects that would increase rail traffic along the same rail lines used by the project as well as evidence that this increased traffic could lead to increased accident risk." The county's response explains, however, that "[m]ost of the projects cited by the commenters as 'omitted' from the RDEIR are located substantial distances from the Refinery ... and most involve transport or refining crude to some degree; they do not involve the transport of [liquid propane gas] by rail. Comparing potential hazards of transporting [liquid propane gas] and other types of hazardous substances cannot be meaningfully done; this is explained
On appeal, Citizens suggests that "CEQA does not require a nexus between projects or that they be of a similar type to be included in cumulative impact analyses. Rather, it asks whether projects will cause similar effects-here, risk of train derailment-that might be individually insignificant but cumulatively considerable." However, the county's explanation for why a cumulative analysis for transportation hazards was not included in this case is not unreasonable. ( Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection, supra ,
Finally, the RFEIR concludes, under standard (b), that the project would not create a significant hazard to the public or the environment through the reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment. The RFEIR includes two different analyses of potential hazard impacts from routine operation of the project. The first, found in the 2013 DEIR and FEIR, analyzed both the "severity of the impact and its likelihood of occurrence" and adopts a standard under which an impact would be considered "significant if both the likelihood of the event and the offsite consequence are in the moderate or high category." The DEIR analyzed six accident scenarios and determined that they all had an "improbable probability of occurrence (less than one release in 100 years)." Of the six scenarios, three had a low offsite consequence (minor injury or damage), two had a moderate consequence (moderate injury of
In response to comments, an additional analysis was conducted in the RDEIR to determine whether the consequences associated with the project's proposed modifications to the Refinery generated potential hazards that are larger or smaller than the potential hazards that currently exist in the refinery. The RDEIR explains, "In order to evaluate potential safety issues associated with the proposed project, a worst-case consequence analysis was undertaken to evaluate the proposed refinery changes with respect to production, storage, and transfer of butane and propane." The county's experts used modeling software to calculate "hazard zones" for the current operations at the refinery and the proposed project operations. Charts and figures included in the RFEIR show that for releases originating inside the existing refinery configuration, the largest hazard zone, with a radius of 1.9 miles, is from Unit 240 (Unicracker). For releases originating inside the proposed project configuration, the largest hazard zone, with a radius of .9 miles, is from the Propane Recovery Unit (Hydrotreater). "Because Unit 240 and the Propane Recovery Unit are located beside each other in the refinery, the impact zone for the proposed equipment modifications are within the existing refinery impact zones. [¶] The primary conclusions drawn from the worst case modeling results are that for all the potential releases analyzed associated with the additional proposed project operations, the proposed additions result in a smaller potential hazard zones than those posed by the existing refinery configuration."
Citizens contends the RFEIR "improperly determined the project's hazard impacts would not be significant by comparing them to existing hazards rather than the existing physical environment." Focusing solely on the analysis in the RDEIR, Citizens argues, "Although the project adds a new layer of hazards on top of existing hazards, the [RFEIR] treated this increase in hazard as categorically insignificant unless the new hazards would affect new people who previously were not exposed to any hazards at all. Specifically, the county claims the project's impacts are insignificant because the areas of 'potential off-site hazards associated with the proposed project ... are smaller than the potential existing off-site hazards associated with the current refinery operations.' In other words, the EIR would only find hazards from the project to be significant where they expanded the hazard zone as compared to the existing hazard radius." Citizens emphasizes, "This comparison does not disclose that the Project will increase hazards within existing hazard zones, and because it finds the impact insignificant, does not include any mitigation to reduce it."
Disposition
The peremptory writ of mandate issued by the trial court is affirmed.
We concur:
McGuiness, P.J.
Jenkins, J.
Notes
Communities for a Better Environment and SAFER California also filed petitions challenging the county's approval of the project and certification of the EIR. Neither has appealed the trial court decision.
All statutory references are to the Public Resources Code unless otherwise noted.
"The term 'feedstock' ... is commonly used to denote the fluid material that is fed into a refinery process unit."
The proposed project would be a permitted project within the heavy industrial zoning applicable to the Rodeo refinery but "a land use permit is required under the Hazardous Waste or Hazardous Material Ordinance § 84-63.1002 of the Contra Costa County Code."
The RFEIR includes, among other documents, the DEIR, FEIR, RDEIR, all comments on the RDEIR and the county's responses to comments.
"The term 'CEQA Guidelines' refers to the regulations for the implementation of CEQA authorized by the Legislature (Pub. Resources Code, § 21083 ), codified in title 14, section 15000 et seq. of the California Code of Regulations, and 'prescribed by the Secretary of Resources to be followed by all state and local agencies in California in the implementation of [CEQA].' [Citation.] In interpreting CEQA, we accord the CEQA Guidelines great weight except where they are clearly unauthorized or erroneous." (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007)
The refinery currently "processes crude oil from central California received by pipeline and from a variety of domestic and foreign crude sources delivered by ship at the Marine Terminal." These imported crudes range from a very light crude from Bolivia to a heavy crude from Canada.
Citizens does not reassert the argument made in the trial court that a single EIR should have been prepared to address all of these projects. Instead, it argues that the other proposed projects "offer further evidence of a foreseeable change in crude quality that should have been part of the description of the Propane Recovery Project."
In this regard, the county's response to comments on the RDEIR explains that "at present time a company's purchase of raw material is a business activity and not a CEQA project or action that would require discretionary permit or approval by the county."
Contrary to Citizens' argument, the trial court did not interpret CEQA "to mean that inconsistencies and shortcomings in a project description must appear on the face of a CEQA document in order to render a project description inadequate." The court addressed and rejected Citizens' evidence on the merits.
The DEIR and FEIR contained no reference to impacts from downstream greenhouse gas emissions. The Air District's concerns about downstream emissions were not raised until the appeal was pending before the board of supervisors.
Sierra Club v. Federal Energy Regulatory Com. (D.C. Cir. 2017)
Master Response 2.5.1 addresses concerns raised by commenters that the RDEIR considered only risk from LPG tank cars but should have considered all tank cars in its analysis. The response states, "The proposed project includes the transportation of [liquid propane gas] (butane and propane) by tank car. The frequency analysis for the transport of butane and propane by rail in the United States is presented on page 4.6-27. It would not be appropriate or accurate to include frequency data covering derailments, releases, etc. for other types of railcars or other types of materials into the analysis. This is because the tank car designs are different for many types of commodities carried by rail and for other materials ..., which have significantly different hazard impacts than propane or butane. Thus the probability analysis as presented in the RDEIR is correct as it specifically addresses the project's rail requirements."
Citizens suggests that the county's response "conflicts with the RDEIR's earlier explanation that accident risk should be calculated on a per-car, not a per-train basis." The statements do not conflict. The cited section of the DEIR merely states that to make "a valid risk comparison" between current conditions and conditions under the proposed project, the DEIR compared the number of tank cars transporting propane and butane. Because the project does not propose new train trips, a comparison of existing train trips to new train trips would clearly be meaningless. The county's statement that the project would not contribute to increased congestion based on numbers of trains is accurate and does not conflict with the analysis undertaken in the DEIR.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.