What's a ROG and Can It Hurt Me? EIR Overturned For Failure to Explain Air Quality Impacts to Human Health

by Stoel Rives LLP
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In Sierra Club v. County of Fresno (Cal. Ct. App. 5th Dist. May 27, 2014), the Fifth Appellate District found fault with the County of Fresno’s (County)  review of the Friant Ranch Project (Project) under the California Environmental Quality Act (CEQA). The appellate court concluded that the County’s Environmental Impact Report (EIR) did not sufficiently correlate the Project’s air quality impacts with impacts on human health, and did not sufficiently define mitigation measures designed to address air quality impacts. With respect to correlating air emissions to human health impacts, it is worth noting that the court did not address the extent to which this is possible. Initial reactions from air consultants who have reviewed this decision is that it is not technically possible to calculate this correlation with such specificity, leaving open the question of how lead agencies will respond to this decision in future CEQA documents. 

The County approved the Project in 2011, a planned community for persons age 55 and older, which includes single family and multi-family residential units, a commercial village center, recreation center, trails, open space and parks and parkways in north-central Fresno County.

Petitioners challenged the adequacy of the EIR’s discussion of the Project’s wastewater production, discharge, use and disposal, as well as its analysis of air quality impacts. Examining the draft EIR, the appellate court found the wastewater analysis was sufficiently detailed. The appellate court noted that while the draft EIR may have been general in some regards, such as the location of wastewater effluent application, it still provided enough detail for the public to comment during the review process. Further, the final draft included more specific information that satisfied CEQA’s informational requirements.

The appellate court held, however, that the EIR’s analysis of air quality impacts was inadequate. First, it did not include an analysis that specifically correlated the Project’s emission of air pollutants to its impact on human health. Second, the mitigation measures for the Project’s long term air quality were too vague and lacked specific performance criteria. Finally, the appellate court found that how the air quality impacts would be “substantially” reduced was unsupported.

The EIR listed various types of air pollutants that the Project would produce, the amount in tons per year of pollutants that would be generated, and identified in a general manner the adverse health effects associated with exposure to the pollutants. It did not, however, correlate the Project’s specific amounts of emissions to human health impacts. The appellate court pointed out that, “[t]he information provided does not enable a reader to determine whether the 100-plus tons per year of PM10, ROG and NOx will require people with respiratory difficulties to wear filtering devices when they go outdoors in the project area or nonattainment basis or, in contrast, will be no more than a drop in the bucket to those people breathing the air containing the additional pollutants.”[1] (Slip. Op. at p. 48.)

The appellate court also found the EIR’s mitigation measures provided insufficient detail because they did not expressly identify how the measures would be enforced and did not state who would do what and when action must be taken.  

Lastly, the EIR stated that the mitigation measures would “substantially” reduce air quality impacts, but failed to substantiate this conclusion. The appellate court therefore held that this assertion that the air quality impacts would be reduced substantially should be either explained or deleted.

[1] The acronymns PM10, ROG, and NOx refer to three regulated air quality pollutants:  particulate matter up to 10 micrometers in diameter (PM10), reactive organic gases (ROG), and nitric oxide and nitrogen dioxide (NOx). 

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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