HomeMy WebLinkAboutAgenda Bill 4APart1 12/21/2009tr , • ~ f`Jl
CITY OF PETALUMA, CALIFORNIA ^
. 1 `AGENDA ILL ®ecennber 21, 200'
.Agenda"Title: Consideration-and Possible Adoption of Resolution 1Vleeting IDate: December 21,
D`irectingthe 1Vlayor to Submit, a Letter to the Sonoma County Board of 2009
Supervisors Objecting to the Revised Dutra Materials Asphalt Batch Plant
Project Meeting Time: 6:00 PM
Category: ^ Presentation ^ Appointments ^ Consent, ^ Public Hearing ^ Unfinished Business ®New Business
Department: Director: Contact';Person Ph'orie Number:
City Manager .John Brown John Brown 778-4345
City Attorney .Eric W. Danly 'Eric W. Daily 778-4362
Total Cost of Proposal or Project: Name of Fund:
Amount-.Budgeted: Account Number:
Current Fund Balance:
Recommendation: It is recommended that the City Council take the following action.:
Deliberate and by motion. adopt the attached resolution directing the 1Vlayor to submit a letter to the Sonoma
County Board of Supervisors objecting to the revised Dutra Materials Asphalt Batch Plant project
1::^ First-reading of Ordinance ~approved,unanimously„ or with unanimous°vote to allow posting priorto second reading
2. ^ First reading of Ordinance approved without unanimous vote: Ordinance has been published/posted prior to second.
reading;.: see Attachment
3. ^ Other action requiring speciaLnotice: Notice has been given, see Attachment
Summary Statement:. A revised Dutra Materials Asphalt Batch Plant project is scheduled to be considered by
the Board of Supervisors at its January 12, ..2010 meeting at 2:30 p.m. The previous project was the .subject of
objections and opposition from many Petaluma citizens and groups, 'including two letters opposing the project
submitted by the'City Council. According to the County staff report; the revised Project reduces environmental
impacts on aesthetics, air quality, hydrology and water quality,:nose and transportation and traffic, but does not
change the Project's impacts on biological resources, geology and soils, cultural resources, hazards and hazardous
materials, and land use. Also according to the staff report; .aesthetic and air quality impacts remain significant
despite the Project revisions.
Attachments fo: Agenda Packet'Itern
1. Letterof'objection dated Febrtiary 2, 2009 to .the Board of Supervisors signed by all Council members
2. Letter of objection dated June, 2;, 2009 submitted by the Mayor on behalf of the City Council to the Board of
Supervisors
3, County staff report and
draft conditions of approval for the revised' prof ect
,
4: Transmittal and letter submitted,by°the U.S. Coast,Guard to the~Board of Supervisors on December 7, 2009
5. Draft`resolution directing'the Mayor to submit a letter to the'•Board of Supervisors objecting to the revised
Dutra project.
Reviewed by.Fnance Director: Reviewed 't Attorne, : A ro ed b Mana er:
Date::.. __ Z~ ~,5 ~~ ` Dater ~2~. ~5`~~ Date: 1~~%~ -C~
Rev: # :: Date~Last Revised: File:
N,r ~~
CITY ®F P°ETAI,UIVIA, CALIF®RNIA
DECEMBER 21, 20U9
AGENDA REPORT
FOR
CONSIDERATION AND POSSIBLE ADOPTION OF RESOLUTION DIRECTING THE MAYOR TO SUBMIT A LETTER
TO THE SONOMA COUNTY BOARD OF SUPERVISORS OBJECTING TO THE REVISED DUTRA MATERIALS
ASPHALT BATCH PLANT PROJECT
1. RECOMMENDATION: Deliberate and by motion adopt the attached resolution directing the Mayor to
submit a letter to the Sonoma County Board of Supervisors objecting to the revised Dutra Materials Asphalt
Batch Plant project
2. )BACKGROUND: At its December- 7, 2009 meeting, the City Council considered a draft letter to the
Sonoma CountyBoard of Supervisors: concerning the revised Dutra Materials Asphalt Batch Plant project, and
heard public comment on the revised project. At the December 7 meeting, the Council continued consideration
of the draft letter to the Council's December 21 meeting. The Council's action was based in part on the
Board's having issued notice earlier that same say that the Board's consideration of the project would be
continued to January 12, 2010, at 2':3:0 p.m. Continuance of the Board's consideration of the project appeared to
be at least partly in response to a letter forwarded on December 7 to the Board from the U.S. Coast Guard
indicating the Coast Guard's intention to analyze potential project impacts. on recreational vessel traffic on the
Petaluma River. At the December 7 meeting the Council also gave direction regarding further edits to the draft
letter. Attached in this agenda package is a revised draft letter to the Board of Supervisors concerning the
project. As of the completion of this Agenda report, it does not appear that the County has made additional or
updated materials available concerning the project. Additional project materials that are made available by the
County and that maybe helpful or important for the Council's consideration of the project maybe added to the
agenda materials. or otherwise distributed for review. The following summarizes key County steps in
processing the project so far as well as City actions regarding the project:
On February 2; 2009, following expression of concern from many Petaluma citizens and groups, the entire City
Council signed a letter for submission to the Board of Supervisors urging denial of the Dutra project and raising
objections concerning project impacts in response to the Environmental Impact Report. On February 3, 2009,
the Board ofSupervisors-held a public hearing on the draft Environmental Impact Report and response to
comments and tentatively approved the project by a 4-1 straw vote. The project was referred to the County
Planning Commission for consideration of a General Plan amendment concerning. General Plan noise standards.
On May 21, 2009, the Planning Commission passed on a 3 2 vote a recommendation to the Board of
Supervisors to approve a General Plan amendment to allow project barge operations to exceed General Plan
noise standards. Subsequently, the City Council unanimously approved the Mayor's sending a letter on behalf
of the City to the Board of Supervisors raising numerous objections to the project under the California
Environmental Quality Act and other applicable law. The letter was submitted June 2, 2009. On June 9, 2009,
the Board of Supervisors held a public hearing, considered the draft EIR and voted tentatively`to deny the
project on a 3-2 straw vofe. The Board continued the project to July 21, 2009 for a final vote. Prior to the July
hearing,. the applicant proposed a revised project and requested the item be continued for environmental
evaluation of'the revised project. On July 21, 2009, the Board continued the item, and directed County staff to
analyze the revised project and return to the Board with a summary.
2
On December 2, 2009, city staff obtained a staff report and other materials concerning the revised project for
consideration at the Board of Supervisors' December 8t" meeting. The County staff report for the December 8
Board of Supervisors' meeting, and draft conditions of approval, are attached to this Agenda Bill and Report..
Additional materials concerning the revised Project are available in the.City Clerk's office. As can be seen
from :the County's staff report, the revised Project: eliminates on-site recycling equipment, reduces use of
recycled asphalt,:redu~es peak hourly asphalt production, reduces the height of the two asphalt silos, and raises
the pad elevation of the prior recycling area. The staff report also indicates that the revised Project reduces
environmental impacts orr aesthetics, air quality, hydrology and water quality, noise and transportation and
traffic, but does not change the Project's.impacts on biological resources, geology and soils, cultural resources,
hazards and hazardous materials, and land use. According to the staff report, aesthetic and air quality impacts
remain significant despite the Project revisions. .
3. DISCUSSION.: If the City Council continues to object to the Project in its revised form, the Council
may consider and adopt the attached resolution. directing that the Mayor send the Board of Supervisors another
letter of objection on behalf of the City Council. A draft letter is attached to the resolution.
4. FINANCIAL IMPACTS: None, other than staff and city attorney time to prepare the letter and any
related documents.
1331464.2
3
A'4"F0.Ghr~e.n'~
POST QFFiCL BOA 61
PETALUMa, CA 94953-OU61
PnmcinTuniiatt
~4fm+or February.?, 2009
Tcrct;a Qarrcft
Pavia clogs Supervisor Pau] Kelley; Chair
Mike Hnrris
1~iisce tiea~y
Sonoma County Board of Supervisors
David Rnbhitt 75 Administration Drive, Room l OOA
5
Tirtnny Rene
Cvm,cilnreinbers ,
Santa Rasa, CA 954,03
• Comments on the.FElI2 for Dutra Haystack'Landing Asphalf and Recycling
Facility (SCH No. 2006022107}
Dear Chair Kelley and JVlembers of the Board of Supervisorsc
After an overwhelmnb,;outpouring from the public eapressing'strong concern and even
outrage regardingthe=proposal to locate the Dutra,asphalt plant on property at 3.355
Petaluma Bo.ulevard;South; the Petaluma City Council `held public-discussion on the
proposal_again-ori lVSonday,.January 26, 2009.'Although the project site is outside city
limits; itis within'the City's Urban Growth Boundary. ,Mare importantly, it sits aYour
city gateway; directly across the river from Shollenberger Park. The Park, and its
.critical wildlife and wetland,habitats, attracts=thousands of residents, students; athletes
and Visitors each_year. The CityCouncil,.generally, supports the economic.value of
asphalt and~recycling`facilities in §outherii Sonoma~County. However, the public and
the City Council are`particularlyfocused on the detrimental impacts of plant operations
on the sensitive wildlife:habitats on and around thesite, and on the many local residents
Cig~ Manager's ojfce and visitors, to Shollenberger Park.
11 English Street
Petaluma, Gl 94953
The site is locatednear the:Sonoma-Morin Area Rail Transit:(SMART) and.
Phone (707) 7Z8-439,1 immediately adjacerif~to-the<footprint of the new Petaluma-Boulevard South'
Fax (707) 77a~9l9 interchange, which as you Inow is one of the few elements of the Novato Narrows.
E-ttiro;t
till+mgra ci,petaluma.ca:,ts
widening that is currently funded through construction.'The new section of freeway
" through this segment will be at a significantly higher elevation than the existing
F)'irnurr, Resources ~ freeway. The new :interchange will exacerbate the visibility impact of the proposed
Phone. (707) 7za~ss4 project in three'ways: (])the new interchange will adjoin the project sitewith no buffer;
Fax"(707) T78=4539 (~}the higler`elevation of the new freeway and interchange make the project site'more
humanreaairrces@ ' visible to the public; and•(3) the increased elevation will .diminish the effectiveness of
ci:peraGrn,a.r:a.us any landscaping thatmight be planted an the project site as a visual screen. Thee. BIR
does.not even attempt to analyze the visual impacts.from the new'interchange or
Jnjnrn,atior: Tecl,r,ologP 'freeway elevation. _
Phone (707} 778-4417
Fax (707J i7G-3633
E-hail
Additionally, new information regarding the>safe navigation of the Petaluma Rivet at
i,lQicipetalunra.ca.,s the'Dutra location has come to light. Hazards to navigation exist with the positioning of
Dutra's moored barge and trig at the river frontage?to•their project, as presented in the
Risk hldnageme,ir application. Without changing the position.and location of Dutra's mooring by tucking
l! English street the barge and tug into the bank, collisions and sideswipes will occur on this turn of the
Pe"tahrma, c~ 999x3 riverwith other barges and large traffic an the river. This is especially important to the
Phone (707) 776-3<95
Fax (7t77) 776-3697
existing tug and barge traffic hauled by Jerico Products Inc, a.ley business for
E',tl°'l We also want to
as well as for powered and non-powered craft on the river.
Petaluma
riskmgi~v_lci: pe 1al u,na. ca. tts .
;
4
emphasize the safety concerns the proposed placement of Dutra's moored barge
presents for rowing athletes and recreational boating visitars,lt is critical that
navigational issues be addressed before approvingthis project.
The safe navigation of our river is important to our local economy through river-
dependent industry, to our~ability to maintain the dredging of our riverbed, and to the
recreational tourism. of,the boating community tltat came to Petaluma from the San
,Francisco Bay and Sacramento Delta and'tlre world. Just last fall Petaluma was proud to
host afull-size historically:accurate replica of the Nina, coming in from a..recent trip
from British Columbia, and; the Wine Country Classic, Regatta. Events .like these, and
the~support they provide to the local economy, cannot happen without afully -and
safely - navigabler,river. Both the Petaluma Turning Basin and the. Petaluma Marina, a
City of Petaluma recreational -facility, are inland from the applicant's location. The
Petaluma 1Vlarina and the Sheraton Hotel rely on recreational boating affic and river-
oriented events` as part of theirbusiness. 'Both face-..certain economic Sosses from the
impact of asphaltplant operations and navigational hazards;
The Petaluma Rider is a vital natural habitat and a "working" river. Shollenbereer Park
is an invaluable community resource, in part, because it offers its'users.an up-close,
first-hand experience of those very features'. -Shollenberger Pazk is'the_ northernmost tip
of the vast~b000-acre~Petaluma Marsh, which 'is'recognized as anational treasure (Josh
Collins, PhD, Wetlands Scientist, San Francisco Estuary'Insttute). The Park i one of
the very few, locations for public access,and trails. into the Marsh itself and:has become.
a widely recoti ized_ destinafi'on for scientific study, education and wildlife observation
and appreciation. Tlie Park, and the adjacent A1man,IViarsh„will soon be expanded.to
include the "polishing wetlands" that aze:p'art ofthe Ellis Creel: Wastewater Treatment
Facility and Wildlife Sanctuary, making ours one ofthe largest contiguous wetland
habitats in the Bay, -Area. As you know; the wetlands area is the,seasonal',home to
thousands of native and~:inigratory`birdsand otherwtldlfe,:and supports significant
heron and egretrookeries. The access to-the P.ark:rrial:es this: an environmental
education gem fofi~schools in he Bay Area, many of which struggle on ]imited'budgets,
to provide outdoor educational- programs to students. Educafors have expressed health
and safety concerns'with plant operations and are reluctant;to continue education
programs atahe site.ifthe plantis built<.as currently;proposed..A Ioss of this natural
educational setting would. be an injustice to.Sonoma County students and those from
throughout'the Bay Area, .
The Petaluma.River is a training location for tfie Rowing community. Athletes from all
over the world train and compete on~the River. The; Wine Country Classic Regatta i`s:a_
highly attended rowing competition, including'athletesYfrom regional schooTs;~colIeges
and. clubs. and international athletic circuits that,include Olympic conter-ders. The
October 2008';compefition attracted over 600 competing athletes. Their health•and
safety are of `great concern. The Dutra project will impact-the ability of City of
Petaluma and many athletic organizations to market Petaluma as an athletic destination
due to healthy. and safety eoncems.
Petaluma and: entities such as Sonoma County Agricultural Preservation and Open
5paee,District, the California Coastal. Conservancy, the San Francisco Estuary Invasive
Sparttna,P,roject and the California Coasta] Comrriission.have ali;made si~rifcant
investments'in• the Ellis Creek Project:and/or wetlands restoration. The Board of
Supervisors invested $1.;1,000;400 of our sales tax to 'acquire the Cardoza property,
with the~promise to restore To]ay Lake. This, will make Shollenberger Park an even
5
stronger tourist attraction unless"an ;asphalt plant is built thatpoisons.the air and tivater,
and .in .the process drives away the birds and tourist dollars. We urge the -Board of
Supervisors to•piease do the'rigiif thin; to protect birds; humans, tourism, and. our
economy.
The Petaluma City"Council cannot'emphasize enough how critical it is to effectively
mitigate the potential `.impacts of the Dutrafacility in order to maintain tile high=quality
aesthetic, habitat and recreational values-that make ShoIlenbergerPark:so attractive to
so many Sonoma County residents and visitors.,, Wecall on. the members of the'. Sonoma
County Board of Supervisors to fully protect Shollenberger Park and.the,adjo""fining
wetlands as:itevolves-through the efforts ofnumerousvolunteers and organizations.-
into aworld=class environmental education site and wildlife habitat. We also ask-that
:you ensure the peace and tranquility of•the visitors to, the human and non-human
residents of; and' SIv1ART and Highway :101 commuters passingthrough Petaluma.' We
urge the Board. of'Supervisors #o deny this proposal in its current form.
Should our request for denial. be rejected, we request the Board to incorporate.in total
the'"followinb comments°into;thefinal project mitigationsand~conditions of approval;
The project site°is'located at Petaluina's southerly gateway. Visual simulations
contained in`the"Draft EnvironmenfaLlmpactReport for the project1eave no
doubt of:tlie massive visual impact:of the propgsed, project, viewed either from
Highway "101 or from ShoIlenberger Parka The current EIR does not attempt to
analyze v'-su..al impacts from the new interchange<ar freeway elevation.
Buildings, including the design and location:'of the.San Antonio Fire
Department, .landscaping andother. features shall;result in a thoughtful,
coordinated and well-designed appearance that;reffects:gateway status of the
property along Petaluma Boul"evard"'$outli and the view shed.from Highway
101".
The: County'must ensure before project approvals are granted`that the
positioning of Dutra's moored' bar e'and tug of the river frontage to their"project
b. g
poses no navigational hazards. Without altering,Dutra's mooring by'tuc'ng the
barge and ~tug,into`the'bank, collisions and sideswipes will occur on this aum of
the river with other•barges and "large traffic.on the river. "This is especially
important io the ~e~i ting tug and barge;traffic hauled by lerico Products Inc, <a
key business°;for Petaluma, as well,a§ for powered and non-powered craft onahe
river. Again, "we also emphasize the. safety. concerns to our rowing athletes and
recreational boating visitors. ln: addition,, it'is unclear that mooring the length of
...
Dutra's barge (200!) plus their tug (60') can be accommodated egally°and safely.
within the property length of Duta's:river'frontage. Thi needs to lie verified
bytlte County; with reviewby the Coast'Guard :and the Army .Corps of
Engineers'before project approvals.are granted..The. commitment by the
appiicantao suspend barge.activity in'the area surrounding the Wine County
Classic Regatta, and other planned river-tourism events-must also be
guaranteed in'wrifingprior to project approuai and zoning amendments.
Polycyclic:Aronratic Hydroearbons(PAHs),"diesel fumes, particulate emissions
(particularly fine particulate matter, ,or PM2.5; as welLas coarse particulate
matter, or PM 10), silica dust and~other toxic gases.at the concentrations
released from the proposed Dutra operations are lnowri carcinogens, and pose
chronic and acute public health and welfare:risls. Such emissions are
dangerous for"the young, seniors and those with impaired immunity,. cardiac
and respiratory ailments, and to the truck drivers:enbaged in loading and '
weighing activities. Pi•evailin~ winds~wh carry these to~.c pollutants.
particulates and odors across the ri~er'to the. Park and to adjacent homes and
.businesses. These are conditions under which. many medical :professionals
advise their coronary heart disease patients to remain_ indoors. These emissions
cumulatively area problem when discharged in additionio the air basin's
ambient and non=attainment:atatus. The Petaluma Health Care District lias
requested clear information about the public health impacts and risks of the'
proposed Dutra operations. We share. in hat concern and echo their reduest.
The expert analysis provided to PRMD by Pless Environmental, inc_, Dec. 7,.
:2008,, appears to raise significant questions. about the completeness, validity and
accuracy of,the air`quality and global climate change analyses and' impacts
provided in the.FEIR. As proposed; the;.potential-appears to.exist for
unacceptable to dangerous levels of escaped' "blue. smoke" (PlAH): and diesel
fumes. NOx levels must be reduced'to insigniftcantaevels'on the first day of
operation. P.AHs must be contained;and` should. be mitigated byusing.catalytic
converters and hydrocarbon incineration rather than electrostatic converters.
Mitigations:must~include verifiable'and enforceable oversight.
The proposal byDutra to claim a riparian right and extract.. up to ?0-000 gallons
of water from tfie -Petaluma.River daily for dust control, ubsequently'leadingto
runoff potentially into the Petaluma River,. isalso of~gFeat concern and is an
area: we believe requires more study and consideration. The use of unfiltered
Petaluma-River wafer'in,asphalYproduct produces;a degraded product dueao its
high salinity. Ariy water used in production'must,be either fltered to'remove
sait'orpotable'water should be used in the alternative. Any waterto be removed
from the. Petaluma River should also be subject to screening.in a manner that
.,.
protects,aquatic life. No_ water use (for production or dust control) should.;result
in runoff. _
Since rubberized asphalt as well as standard'asphalt will be produced of this
location;(per.,tbe petniit application, and as.`Caltrans demands more and more
rubberized asphalt`.far'their contracts),:theentire;plant must be.totallyenclosed
to contain,.; sequester and scrub emissions anc3 odors related to rubberized.
asphaltproduction: Ari updated EIR should berperformed to evaluate the
environmental impacts of rubberized asphalt production. Should available
regulation not be cuff cient to mitigate the;odor and'.: emissions impacts of the
rubberized asphalt operation, th.e City;,Council-requests~.thatthe Board of
Supervisors-reject'the.use permit, .or consider an alternative;site, away from
sensitive habitat and recreational areas:,
At a minimum the EIlZ should eval'vate'the economic impacts of the facility on
eco-tourism destnations;as ;it~relafes to investment of public resources:
(ncluding,recreational foci]ities'Ike~the~Petaluma,Marina} towards eco=
tourism,~wetlands.restoration and the local tourism industry (including the
Sheraton.H_ otel): .
The recycling of asphalt shall on~y'be done duringdaytirne business hours,
Monday -Friday, and slisil comply with .strict noise~and dust control.
regulations and shall be contained wrthn• apermanent-.enclosure. Although the
City `Council supports the,recycling of~asphalt:.as a sustainable, green'building
element, it is'concerned about the impacts .of.the,recycling operation ~n nearby
sensitive habitat and recreational areas. Should available regulation not be
sufficient to mitigate the noise~and dust impacts of the recycling operation, the
GityCouncil requests that,the Board of Supervisors eliminate the;recycling
operation from the site; reject t}ie use permit or consider an: alternative site,
.away from sensitive habitat, and recreational areas..
A~ supplement o the EIR was to~~.he completed'and published by Caltans
regarding the heron and egret colony and rookery, located at the proposed site.
To date the status of this supplement to the. EIR is undetermined, the
community of Petaluma has not~been given .opportunity to read and comment
on that supplement, nor.are we aware that there°were ever any County hearings.
field' ip Petaluma regarding-this proposal. Dr. Sohn Kelly has given expert
bioVogical opinion regarding the 'impacts to the colony., We request that his
opinion and research be given dueconsideraton when mitigating;(the impacts to
the colony. The,colony has great significance to the residents and..other visitors
to .the area, including the students participating in egvironmental~education
programs. Thisrookery has been very productive and healthy, and a major
destination for scientific, study-with the Audubon Canyon Ranch and
educational observation 6y schoolchildren and birdwatchers of al] ages. Expert
testimony in the FEIR indicates the construction, fire district training; activities,
truck tra~c,;and ongoir-g Dutra activities willlfkely-.result in abandonment of
this important -and: federally protected -=rookery. Should,available regulation
not;be sufficent'ao mitigate the impacts to ;the heron and egret:colany, the City
Council requests-chat the;Board of'Supervisors.reject°the use permit:or consider
an alternative srte;for the project;:; away',from sensitive habitat areas.
_,
® Minimize-tle impacts to local Petaluma'tra~c, acid streets by re,quring'alltruck
traffic to and froinahe site~to use Highway ].Ol and tixe_closest;freeway access.
® Require that waiting trucks have,appropriate idling restriction"s in order.to
minsmizediesel emissions; ensure diesel filters are installed on all trucks
coming and going from facility.
® Applicant shall mitigate project related noiseao conform to the City's adopted
General:Plan autdaor noise standard of 60dbCNEL at Shollenberger Park,
adjoining wetlands and the future ,pro}ect~located' at Quarry Heights on
Petaluma Bqulevard South,
® Nighttime fighting shall,only'be used-when,the plant is in operation.,Ah
]igliting should bejdesgned: to -shine downward; take -ground: fog into;
._.
choosing lighting types, and to insure°that,arEificial`light
consideration when
does:''nof spill over.'mto=sensi6ve habitat areas adjacent to the site and at
Shollenberger Park and adj`oining;wetlands.
~: -
® Require a binding;commitment from Dutra Materials to allow public:access to.
the 19,.acres of.wetlands and open space immediately;adjacent to the project
site.
In sum, the currentproposal is not designed apprgpriatelyfor an important gateway
both to Petaluma and;to:Sonoma;County..Additionally, the EIR does not~address future
uses; uch as rubbertzed asphalt prod'uction;;cliniate recovery; air and water.quaIit3~;, .
health and safety; recreational and education activ-ities. 'Nor have wildlife habitat:issues
been: addressed adequately. Accordingly we respectfully request that the current
praposal;not be approved in its present farm.
We recognize the importance to the .local°economy of locating a'pennanent asphalt
plant omewhere in soutliem Sonoma County. In- fight of this: the-City of Petaluma is
willing to work collaborativelywfth the ~applicant~'the:County,, and the other
stakeholders either to improve the proposal. for the proposed site: or to identify a
mutually satisfactory alternative site.
a
Thank you.for your 'attention to this matter.
Mayor
.~.
//
G% /~
David Glass
Councilmember
1 I. ~ ~.
EJ L1_i
•~
Teresa- Barrett
Vice Mayor
~~~~~~U.
Mike Harris
Councilmember
~~
~.
Mike Healy
Councilmember
y
~~
Tiffany Renee
Councilmember
David Babbitt
Councilmember
cc: Board of Supervisors
Petaluma:'Reci-eation, Music and Pars Commission
City Mar-ager
City Attorney
Parks aad Recreation Director
Community Development Director
"1
A~-4 ac~,~r,~~~ . 2. .
~I'' ]F '~'AI~TJl>~IA
POST OFF)<CE SnX Cl
PE~rat.urirA, CA 94953-0461
Pamela TorLiatt June 2; 2009
Mayor
Teresa Barrett
David Glass
114i1ceHarris
Milce Healy Via Facsimile-and US' iVlail
David Rahbitt Sonoma County Board of Supervisors '
Tiffany Rene
Councilmernhers
5.75 Administration Drive, Room 100A -
Santa Rosa, CA 95403'=2887
RE: Dutra. Plant EIR
Dear Hon. Chair Kelley; Members of the Board:of Supervisors:
1 atri writing on behalf of the entire Petaluma City Council to submit these comments
regarding the Environmental Impact Report ("EI'R") and~other issues raised by the Dutra
- asphalt. plant ("Projecf) currently pending before ahe County. The City has numerous
concerns with the Project and. with the County's EIR, not the least of which- are .the
Project's significanf° impacts on the City's Sliollenberger Park, which thousands of the
City's residents use every year, and the'iinpactthat placitZg this industrial facility at the
gateway to the City will-have for years to, come. Moreover, the City is concerned that. the
'County wll;approve this project without fiilly complying with mandatory requirements
of the California Environmental Quality Act ("CF,QA") and the. Guidelines implementing
City Manager s Office CEQA, or the Planning and Zoning Laws (Gov't Code; §, 6.5000 et seq.). This letter
-
11 English Street identifies for the County the numerous flaws in the EIR and. the C'ounty's process that
Petahsma, c,~ 949sz' rohibt the Count from certif m the EIR or a rovin the ro ect.
P y Y~ g . PP g P j
Phone (707j 778-4345
Fax (7n7j_778-4419
E-,klatl The Coun Must Recirculate the EIR Prior to Certification
~'
citymgr@ci.petaluma. ca. us
The County has attempted to address the `flaws in the 'Draft EIR (`DEIR") in a piecemeal
Human.Resources manner, changing and amending the EIR. itself and adding substantial enviromnental
Phone (707) Z,78-4534,
.Fax (7n7);778==1539 reV1eW and anal sis subse went to the ublicaton of both the DEIR and th:e Final EIR
. 3' q P
E-,~rat1~ ("FEIR"}, all without the benefit of the required public review and commenf.
humdnresource3~u? '
ci:petalurna:cccus
Under CEQA,
Information Technology
Phone (707} 778=4417 "[i]f; subsequent o the period of'public and_interagency review, the lead. agency
!'ax (7n7~ 776-3623
E-h1ai! :adds si nificant new "information to an EIR the a ene must issue n.ew notice and
g ~" ~ g Y
it(~ci.petaluma.ca.us must `recirculate' the revised EIR, or portions thereof, for additional commentary
acid .consultation. The revised .environmental document must. be subjected to the
RiskMru:agement same critical evaluation that occurs i11..the draft stage, so that the public is not
11.EnglishSlreet
Petaluma,. Cit 9495?. denied ari o ortuni to test, assess, and evaluate the data and make an informed
PP tY
Phone (7U7j 776-3695 judgment as to the validity of the conclusions to be drawn therefrom."
Fax (707) 776-3Fi97
E-:v1aiF
riskm~ c^r^r ctpetaluma.ca.us
~~
(Save Our,Peninsula Committee v. Monterey County Bd. Of Supervisors(20Q1} 87
Cal.App:4tfi 99, 131; Guidelines, § 15088.5:) '"Significant°new information" can include,
for example:
"(1) A new significant environmental !impact would result from the project or from a new
mitigation measure proposed to be implemented..
(2) A substantial increase in the severity of Aran environmental impact would result unless
mitigation measures are .adopted that reduce the impact to a level of insignificance.
(3) A feasible project alternative or mitigation measure considerably different from others
previously analyzed would clearly lessen the signfieant.environmental impacts of the
project, but the project's proponents decline to adopt it.
(4) The draft EIR was s~ fundamentally anal basically- inadequate-and concIusory in
nature that meaningful public review and. comment were precluded."
(Guidelines; § 15088.5) By contrast,. recirculation is not required where the new information
"merely clarifies or amplifies ~r makes insignificant modifications in an adequate EIR." (Id.)
The County has added significantnew information,since theDraft E~IR-was published, both in
the FEIR and in other supporting documents, that requires the County to recirculateahe EIR.
First, in the FEI}2 itself; the County essentially abandons mitigation measures required in the
DE]R. Iri response to Dutra's `comment B;18-3, the County added. that the restrictions on the'use
of heavy vehicles to mitigate impact.AQ-1 would only.be "to:the.extentfeasible." Only feasible
mitigation, can be used to mitigate the project's impacts. (Guidelines, ~ 15126:4.) Since the
County has not explained who would make the determination regarding .the feasibility of
restricting- heavy use vehicles or flow this decision was made, Dutra is essentially free to ignore
this requirement: In any event; since it is uncertain that the :mitigation measure is achially
feasible,, the County cannot conclude that this mitigation will actually imitigate impact AQ-1:.
The County has similarly gutted mitigation. measure AQ-2c in response to Dutra's comment
B1`8-5, where Dutra informed ahe County thatit will not comply`with mtigation~rneasure AQ-2c
for at least:part of its operations. The County responded by amending AQ-2e to require the
.limitation. on. the drop heights of aggregate only. to the' maximum extent feasible., Again, iio:
uzformafiori is provided regarding who' will determine:.feasibility'or~how feasibility will be
deteriined. Moreover, 'since Dutra:hasinformed the Cow~ty that ntigation measure.AQ-2c is '
not Feasible for at feast "a portion :of its operations; the County cannot rely on the :mitigation
measure to mtigate'impacf.~Q;=2. Finally, in Dutra camnlent B 8-1:3, Dutra has informed the
County that it refuses to: irnplen:zent mitigation measure Noise-8 because the mitigation measure
is not.feasble. Again, the County amended t11e mitigation measure"to require implementation of
the measure only "[t]o the extent;feasible."~ I-Iowever; since Dutra has alreadystated that the
mitigation measure is not feasible, the County 'cannot consider this mitigation measure in the
mitigation nf;impact.Noise 8. The County should recirculate these revisions to th.e mitigation of
~'"Feasible" is;defined by CEQA as "capable of being.acco~nplished in a.successful:manger'witbin a reasonable
period of ti3ne, taking into account:economic, envirorunental, legal, social, and technological factors. (Guidelines, §
.15364,)
~~
Project irnpacts.and the resulting significance of Project impacts for further review and comment
prior to certif cation of the ETR.
The FEIR also changes the significance of at leasttwo of the Project's impacts in response to
public comments. In response to Comment. ~6 -i'9 the County changed the significance of
impact Trans-10 from "less than ignitcant" to "potentially significant:"' Similarly;'in response
to Comment A6 - 22, the County changed the significance of impact Trans-l2 from "less than
significant" to "significant." Both of,these changes require recirculation to allow public
comment on the impacts and the proposed mtigation,measures selected to address those impacts.
Z`he .County has also. produced sgnif cant new analyses of the Project's impacts subsequent to
the publication of the DEIR. First; both the DEIR and FEIR were published prior to the
County's adoption:of the new General Plan. 2020, and bath dgcument5 examined land use
impacts under the old General Plan..After the County adopted the General Plan 2020, the
County performed a new analysis of the Project's land; use impacts in a January 20, 2049 report.
(Attached as Exhibit B to the February 3., 2009 Staff Report (hereinafter "Staff Report").) .This
new analysis of the Project's'. impacts ao land use should also e recirculated for public~review
and continent: Second, the County correctly concluded that the 2004 `Health Risk Screening
Analysis ,(HRSA) prepared for and, relied upon by the .DEIR was inadequate because the HR.SA
did' not adequately take into accgunt the diesel particulate emissions from barges and truck.
traffic. Thus, the County had prepared a second HRSA.which was released on October 9,.2008,
well after both the DEIR and FEIR. This: study should be recirculated for public review and
comment as :well. Third; the Staff Report°attaches a separate January 22, 2009 memorandum by
Staff with further analysis of.alternatives; GHG impacts; .and the CEQA baseline. (Staff Report,
Exhibit C.) Fourth; the Staff Report attaches :and relies upon a January T9, 2009 memorandum
by .Christopher A. Joseph and Associates that contains further detailed analysis of alternatives,
air .quality impacts, GHG impact; noise, and-other projeet'irnpacts, Fifth; the Staff Report itself
contains extensiveanalysisof'the P.roject's impacts and discussion of eight additional."issue"
areas, including the new environmental analyses noted above, .new analysis concerning marine
transportation impacts, and'the, cotlsideration and rejection of alternatives. proposed by a public.
commenter. The analysis contained in the. Staff Report should also be circulated for comment:
Sixth, the Planning Commission' has suggested several changes which, if adopted,. may'also.
require recirculation, including:. potentially new or modified noise mitigation measures; revisions:
to mitigation measure Bio=4b; introduction of:new mitigation measure Bio-4f; changes o the
restrictions on ingress.and egress -from. the Project site during peals affic hours and the: new
!ahowance of 6 24-hour~periods where~barges would be allowed to operate.at;night; exceeding+the
General Plan's noise,restrictions. Should the County propose to adopt tlese~changes, the County
should first recirculate these changes for~•review and' comment. .
Finally, as noted in the sectois~~below, the.ElR has a number of flaws~that the County mu"st
correct in order to be 'in compliance with CEQA. After the County corrects these flaws, the
County must also recirculate the corrected sections for review and' comment.
The County Cannot.Refuse to Determine the Significance of the Project's Greenhouse Gas
Emissions.
~~2.
The EIR.has not proceeded iri the manner required; by CEQA in the evaluation.of greenhou e gas
emissions arid; global warming impacts. The County rightly chose to disclose and examine the
greenhouse :gas emissions; ("GHG") that-would be generated by the Project,. and also rightly.
"
recognized that :global warming is a signifi.cant~environmental impact.. However, the EIR
avoided the:~issue°whether these impacts are significant. Tlie. EIR relies on a ack of regulatory
guidance;regardng'.the applicable. thresholds of significance to justify the EIR's failure to make a
finding regarding the significance of the.Projeet's impacts. (See DEIR, pp. V.B-37 - 39.) The
lack `of guidance regarding: the :establishment of thresholds of significance for GHG emissions,
however, cannot excuse the County from. its mandatory duties under CEQA.
Thresholds of significance are only, a tool for determining the significance of a project's impacts.
As set forth in Guidelines section 15064.7,
"Each public agency is,encourcrged to :develop-and publish thresholds of significance that
. the agency uses in the determination~of the ignificance of:environmental effects., A
thxeshold~of significance is an identifiable quantitative, qualitative or performance level
bf a particular environmental effect, :non-compliance with which means the effect-will
• normally be determined to be significant by the agency and' compliance with which
means. the effect normally wilt. lie determined to be less than signif cant."
(Emphasis added.) As this Guideline shows, thresholds of'signficance are not mandatory, only
encouraged. Moreover, compliance or non-compliance with.a threshold is only normally
determinative of an impact's significance. Th'e lead agency i5 stil1.required to use its
independent discretion and analysis to deterrriine whether a project's impacts are. actually
ignificant: (See eg. Endangered Habitats League,. Inc. v. County of Orange (2005):131
Ca1.App.4th 777; 792 = 793 (EIR rejected, in pant, for relying on a hreshold that was
"impermissibly lenient"}Berkeley Keep Jets Over the 13ay Camm. v. Bd Of Port Commissioners
(2001:} 91 Ca1.App.4th 1344, 1.380 -13.82 (FAtAstandardthresholds of signifieaiice insufficient);
Riverwatch v. County:of San Diego {1999) 76 Ga1.App.4th~1`428,1453-1455 (county°improperly
relied on'San Diego.Air Pollution Control District thresholds)) The facfthat the state has not
formally adopted guidance dictating which-threshold lead agencies must t~se for GHG analyses
does not relieve the County from its~.mandafory duty to,exercise "its ;independent judgment and
analysisto detenriine the significance of the Project's impacts. (Pub. Res. Code §§ 21'.081.,,
. 21082..1, 21'0,82.2; Exhibit 1, (OPR Technical Advisory on GHG emissions and CEQA):).
~loi'eover, while still in draft form; the: OPR's proposed revisions to the Guidelines would allow
local agencies to make signi~eance findings based on a project's compliance-with,a ]ocal'cIimate
action plan,, (Exhibit 2) .Since tl~e County has already apprgved the Sonoma County
Conununity Climate.Action Plan, the County should,;at the very.least, determine whether the
Project will.eomply`with-the County's own local climate actioti plan. (Exhhbit 3.)
The EIR Fails To Adequately Analyze the Impacts' of a, 500% increase in Barge Traffic.
The Projectpropgses to increase barge traffic from 25 yearly-fixips to 125 yearly trips. The EIR
is woefully'deficient in. the analysis of the impacts of this 500% increase. First,. the EIR fails-to
adequately describe the Project in that the EIR does not describe the actual route that the barges
I~
//1
will..take. „All than"s knowi~'is`that the barges will leave from some place~in SanRafael, travel,
presumably, Through the. San Pablo Bayto the Petaluma River, then head up the Rver'to the
proposed site of the Project. The EIR should have described the actual route as a part:ofthe
Project description.
Second,: the EIR fai s to examine a number of potential environmental impacts of this barge
travel. as follows:
Marine. Transportation; The E1R' fails to include. any analysis of the Project's impacts on marine
transportation: `The EIR_ briefly mentions that;the US Coast Guard has jurisdiction over marine
transportation, then goes on fo conclude that because~of the;applicant"s "familiarity with barge
operations on the Petaluma River" there will be no impacts, (DEIR, p. V.J-31.) The applc,ant's
familiarity:with River operations is not substantial evdence2:that.bhe Project and its 500%
increase in barge trafftc will riot impact existing orplanned' future operations onthe-River. What
.:are the existing levels of marine:traffic on the. Bay? On the'River?. How will'the new barge hips
impact existing marine transportation. on the Bay? Qri the'+River? Ts there even room on the
River for other vessels to pass a barge heading up or down r'iver~ The lack of an adequate
description. of existing conditions andahe lack of analysis of the impacts of the Project on these
existing conditions are both CEQA.errors.
This error is magnified by tlie,Staff Report, which contains iriformafon that.the Project's barges,
when;docked, would encroach on the'navigable channel in~the River. (Staff.Report, pp 14 - 15.}
Furthermore; the Staff Report -indicates that this impact maybe c~unulative with existing impacts
at the neighboring'Shamrock facility. (Id.) Given this evidence, it is critical that the County
ful'Iy analyze the Project's; impacts to marine transportaCion and circulate that analysis for public
review and comirient.
Rail and Vehicle Transportation: The projected 500% increase u1 barge traffic on the Petaluma
River must passe under both ahighway bridge, where Highway 3:7 crosses the Petaluma River just
north of the San Pablo Bay,, and a.nearby railroad,brdge. Vehicular traffic. over Highway 37 is
current and ongoing:.' Freight railaraffic is expected~to resume within tl?e next two years, and
passer>ger rail traffic to 'resume sometime afterward;. In the past; .barge collisions with, the
Petaluma River Bridges have.interrupted rail and vehicle traff c: Thee EIR. fails to consider the
°potential for impacts on vehicle and rails traffic from the greatly increased barge traffic and
~_consequently greatly- increased potential for ciillisions` impacting, traff c over the bridges. ,
Biological Resources: The EIR does examine;potental impacts' of::the barges in the immediate.
vicinity of the: Project site. However, the barges have the potential to impact. species the entire
length, of the River .that the barges travel including;. butnot limited tq; direct physical -impacts. to
species (i.e. collisions), nose~mpacts, diesel emissions, fuel oil leaks<or other pollution impacts.
2 The County.is required to:make findings based.on "substantial evidence",in the administrative record. "Substantial
evidence'' is defined'in°Guidelines section 15.84(x) as
"enough relevant information and reasonable inferences from xhis information that a fair argument can be
made;to support a conclusion., even though other conctusions;might also be reached..... Argument,
speculation, unsubstantiiated opinio.-n or narrative; evidence which is, clearly erroneous or inaccurate, or
evidence of social or economic":impacts which do not contribute to or are not caused by physical impacts on
the environment does not constitute substantial evidence:"
ty
The EIR cannot. artificially limit the discussion of Biological Impacts to only those ;aeas in the
immediate vicinity of the Project site where the Project proposes to substantially.ncrease barge.
traffic all along the River. How will the barges impact the special status species .identified in the
.EIR? Are there different special istafus species in areas of the. River not described and examined
in the EIR? Would these resources be impacted by the increase in barge travel? All of these
questions must be answered before the County can certify the` EIR.
Water puality ,The barges also have the potential to impact water qualify through the
introduction of diesel emissions, andfuei oil spills, the entire length of the barge's trip. These
impacts should also be disclosed and analyzed.
Health Risk Assessment: The County has similarly lmited,the analysis of its health risk
assessments only .to those sensitive.resources in the immediate ~iciriity of the Project site.
Again,_however, the barges will be releasing deselpollutan at=each location along the. River 250
times per year (once on the way in, once on the way back}. Are there other sensitive resources
along the River that may be impacted by these emissions? What~are the potential impacts of
barge diesel emissions orz these~resourees? The County must-answer these questions as well..
The EIR Fails 'I'o Adequately Examine the Hydrology'Impacts of Pumping Petaluma River
Water
The EIR. indicates that the :Project will, use between, 4 and 8 acre feet per year of I'etahuna River
water for ,dust suppression purposes, but the EIR.fails'to corrmpletely analyze the impacts of
removing.this water from the River. (See DEIR, p: V:G-14 - 1:5.} For example, it is likely that
more water for dust suppression will beneeded during the dry times; of the year; which Happens
to coincide with the :times when.River water levels are, at the. lowest:. What is the'ii~npacf of
drawing out this water on species in the River? What is the'impaet of d"swing out this water on
wetlands? nn the groundwater table? If River water levels. are.drawri down, it may cause the
surrounding .groundwater levels to :drop as well, or decrease .the viability of wetlands that require
a near=surface water table for viability: (See Vineyard Area Citizens v. City of Rancho Cordova:
(20Q8) 40 Ca1.4th 41.2, 448 `(noting the opposite flow of water where groundwater draw-down
could result in lower river water levels}.} -
The EIR Fails To Examine the'Impacts Associated with: obtaining Water from Another
Source
The Project~plans on obtaining water from~the.Petaluma`River for use in Project operations,
especially dust suppression: T,he EIR indicates that Dutra believesthat it-has a'"riparian right" to
this water. However, the EIR also indicates that there is a possibility that the Project wit not be
able to obtain water from the River, or will not:be able to :obtain all of the necessary water, due to
,potential endangered species impacts..(See e.g:_ _DEIR, p. III-56:} Should this occur, the EIR
indicates that water would be delivered via truck from the Ellis Creek Facility, (Id.} The EIR,
however, fails to analyze the associated environmental' impacts of trucking water to the Project
site including, but not limited to traffic,;air quality, GHG, and human health impacts. The EIR
must correct this error prior to certf cation.
15
The EIR>,.Coritains Conflicting.and Inadequate Mitigation iVleasures
Mitigation Measure Noise-7 requires Dutra to maintain tockpiles of processed and unprocessed
materials :at certain .locations on the Project site as noise barriers to reduce Project impacts on
nearby residences. However, impact Geo-2 indicates that the. County is not even sure whether
maintaining stockpiles on the Project site: without causing ground disruption is feasible.
Mitigation Measure Geo-2 requires Dutra to retain a geotechnical engineering firm to evaluate
".the potential for aggregate stockpiles {both new and recycled) to cause overloading and.
instability of the underlying Bay~Mud" and then to devise measures to address these impacts.
While it is permissible for the County to :articulate performance Standards rather, than specific
mitigation measures in mitigation Measure Geo-2, the County cannot defer the analysis of the
signif cance of impact Geo-2 until, after project approval. {Sundstrom. v. County ~f Mendocino
{1988) 202 Cal.App.3d 296, 306=~08.) The County must first conduct a furl analysis of the
aggregate .piles' potential to cause soil. instability and disclose thi:S,,impact. Only then will the
public and decision makers be'able fo fully evaluate whether mitigation measure Geo-2 is
feasible. This is particularly important here where the :feasibility of~mitigation Noise-7 relies on
the feasibility of implementing the, suggested mitigation in Geo-2.
Geo-2 has a,second flaw as well. The County isrequired to~disciose~the environmental impacts
associated with mitigation measures. ,(Guidelines; § 1512b.4(a)(T)(D).) Mitigation measure
Geo-2 indicates thatfill will need to be removed from the Project site and replaced with
engineered fill. Thee EIR, however: makes no estimate regarding how much fill will need to be
removed; no esfmate;regarding~ow much fill. will need to be brought to the site; fails to disclose
how many truck trips will be needed to bring in-fill- and remove existing fill; and.fails to disclose,
where the fill .removed from the~Site will be disposed of. Similar concerns. araalso present in
mitigation measure Geo-4; `which also involves excavation. and fill fromahe Project site.and
which also failsto' disclose the.associated.impacts of these operations. The County must:disclose
the impacts associated with these two mitigation measures.
Th'e Coeenty Cannot Approve the;Project Where Feasible:Alternatives or Mitigation
.Measures Exist That Will Reduce Or Avoid the Project's Signii~cant and Unavoidable
Impacts.
The EIR indicates that;;even with the proposed mitigation; the:Projeet will result in a iiurnber,of
Signf cant and unavbidabl'e impacts on the environment.. Under CEQA, however, the County '
cannot approve the.Project!if there are: feasible mitigation measures gr.alternativest~at would
substantially reduce any. of the significant and i:-navoidable impacts of the.Project. (Pub. Res.
Code; §§ 2.1=002, 21002.1.)
The County's failure to properly examine the'Project in the.context of this mandatory duty
results from.a number of ezrors in the County's alternatives,analysiS. First, the. F'EIR and the
Staff Report confuse. the requirement to designate the "environmentally superior alternative"
witl'the completely separate analysis of whether feasible alternatives exist that may reduce or
avoid the Signifcarit.and unavoidable impacts of the project. (Guidelines, § 15126.6) CEQA
clearly states -that the~County must determine whether any alternatives exist that would
Ile
substantially reduce any of the. significant and unavoidable impacts of the Project, not just
whether the designated "environmentally superior" alternative is feasible. (Pub. Res. Code, §§
21002, 21-002.1:) In any event, the'EIR also fails to properly designate~the environmentally
superior alternative. Asset forth below, substantial evidence. does not support the County
conclusion that Alternative D, the Alternative Site alternative, is the environmentally superior
alternative. Both .Alternative B, the Reduced Project alternative, and AItet-native C, the `1VIodilied
Site alternative reduce far more ofthe Project's significant and unavoidable impacts than does
Alternative D.
Second, the County has incorrectly analyzed "feasibility" of Project alternatives under a
subjective standard. Whether an alternative is infeasible requires;rnuch more detailed evidence
than either Dutra or the County have provided. Preservation Action Council v. City of San Jose
.(2006) 114 Ca1.App.4th 1336 is directly on point. There San Jose had approved a project with
sigiuficant.,and unavoidable impacts, finding that.certain alternatives proposed by project
opponents were'infeasible; `and relying; on statements made by the' applicant that the proposed
alternative '`would place: it at a `competitive disadvantage"' in.the San Jose market. (Id. at
1355.) The Court disagreed,-finding that San Jose's rejection of these alternatives was not based
on substantial evidence. Instead, the Court stated that "jt]he mere fact hat an alternative might
be less profitable does notrender the alternative infeasible unless there is also evidence thatthe
reduced profitability.is `sufficiently severe as to render it impractical to proceed:with"the
project."' (Id. at 13.57.) Thus; it is not enough-for Dutra to cIaun that an alternative will ;be more
expensive. or less profitable -- the County must-point to substantial evidence in the.record that the
proposed reduced profitability of the alternative- is so severe as to render i impractical- for
anyone to proceed with the alternative.
Here, the EIR examined three altei`natives;in addition to ahe no project.alternative: the Reduced
Project alternative; the Modified Site-al'ternatiwe; and'the-Alternate Site alternative. The EIR
notes that the Reduced Project alternative would~reduce~fhe Project's significant and unavoidable
impacts to: scenic vistas and visual character; air pollutant einissioils; land use and planning -
conflicts; noise impacts from the asphalt plant and recycling facility; .and txaffie impacts. The
Modified Site alternative would,eompletely eliminate~the recycling yard noise impacts of the
Project and would'reduce the Projeet's.significant and unavoidable impacts to: scenic vistas and
visual character; operational air quality impacts;land'ise~-compati'bility`impacts; barge off-
loading facility„ asphalt plant, and total-.operation noise impacts;' and°traffie impacts. The
Alternate Site alternative would reduce Project's signif cant and unavoidable impacts tq: land use
and planning conflicts and.nose impacts. The EIR also concludes that all three alternatives will'
meet tnosti.f not all of the Project's objectives. Thus; so long as the alternatives are feasible, the
County cannot approve ;the ptoposed project.
Neither Dutra:nor the County has supplied any evidence that the Reduced Project or Modified
Site alternatives would be infeasible. Dufra has claimed that'tl~e Alternative Site alternative is
infeasible since Dutra does not own the proposed site and, according to Dutra, the property is not
s As noted above, the.ElR;has for some;reason concluded that the Alternative Site alternative is the environmentally
superior alternative: The EIR~itself'does not support this conclusion, however,, since'.both of the other alternatives
examined will reduce a greater number of impacts and, at least in the case of the Modified Site alternative,
completely eliminate a signifcant and unavoidable impact of th.e Project.
1"1'
for sale. Dutra has provided no evidence,. However, of any efforts at negotiation for"the
Alternative Site property, including whether"'any offers have been made for the property; what
the current property owners demand for sale of the property, whether the current property owner
might be interested in a land swap instead of a sale, etc. Far more is required than the
unsupported statement that the property owner is not willing,to sell for the Couxity to be~able to
make the finding, based on substantial evidence, that the costs associated with obtaining the
Alternative Site. property are so severe. as~to render it impractical to proceed with the Project.
Since all three alternatives will reduce the Project's significant aril unavoidable impacts, and
since there is no substantial evidence'. supporting the infeasibility of anyof the alternatives, the
County cannot approve the. Project as: proposed.
Finally,. as,noted below, a citizen: commenter has proposed another alternative that would
combine the environmental benefits of:both the Reduced Project alternative and the'Modified
Site alternative to create a "Reduced and Ivtodi:fied Site alternative." Since this alternative has
the potential.to hrrther reduce the";significant and unavoidable impacts of both the Project and the
currently proposed. alternatives; ~tthe County must examine the feasibility of this proposed
alternative.
The FE:IR Inadequately Responded. to Comments
CEQA requires the .County to'respond in writing tq the comments'received by the public acid
public agencies„ (Guidelines, § 1.5088,) While the County ostensibly took this step in the I'EIR,
on a few occasions the response o a comment so completely failed to.address the actual
comment made as to render the response: a nullity. The County should :revise these re"spouses to
actually respond to the comment,made, and recirculate the revised responses before certification.
Cornment.A3=7 asked, m part, .why the DEIR did not examine Project impacts to biological
resources not in the immediate vicinity of the Project.site, inciudin. g the potential for downstream
sedimentation impacts.. The response,'However, like the DEIR, only-focused on impacts in the
:immediate vicinity ofthe Project.
Comment AS -5 was concerned~that debris from Project operation; especially the conveyer belt,:
could cause debris to accumulate on the railroad tracks, posing a significant safety -hazard. The
gramme impacts of gravel and" other debris on the tracks, are obvious,. including potential harm from
derailment of•trarxs in addition to the potential harm to people in the •vicinity of the tracks if the;
passing trains eject gravel "or ether debris from the tracks at high: speeds:. The Response-notes
that_no gravel sdeeasting•would Happen between the pier aiid the barge, but says nothing
regarding the'potental for sdecasting on the train tracks: .
Comment B2=2' offers,another.alternafive for the Project which combines the envirorunenfal
benefits of both the~Redixced Project alternative ar~d the Modified Site~alternative fo create a "
"Reduced and Modified Site alternative." Since this proposed.alternative may reduce the
significant and unavoidable impacts of the Project and ;the currently proposed alternatives, the
County. should have "responded rvitha detailed `analysis of the feasibility of this altemative.
Instead, the~FEIR simply forwards the proposal to the County decisionmakers.
Gomment.B3-2 states the project will have significant aesthetic impacts. The response, however,
only states that the corrunent urges denial and doesn't address the comments regarding the
significant aesthetic impacts of the Project.
Cornment.B.l`~-5 recommends enclosure of all of the operating components of :the Project to
reduced the'Project'a signfcant and unavoidable noise impacts. The Response.claims that this
would be infeasible "frorn a cost and operational standpoint" witliout offering any further
evidence ofthe proposed mitigatort measure's infeasibility.. As set forth above, the County is
required to rely on substantial evidence thatthe cost.ofthis,mtigafion measure. is so severe as to
make it impractical. to proceed with the Project. The bale conclusions set forth in this response
do not.qualfy as ubstantial evidence.
'The Project is Incompatible with the County's. General Plan
It is a fundamental tenet ofplannmg,,,and. zoning law that the. County cannot approve.a project
that is inconsistent with its General Plan.
-.
The County is required o'both maintain an internally consistent.General Plan (horizontal
consistency) and to reject subordinate land use'decisons that°would' be inconsistent with the
General Plan. {Gov't Code, § 65300:5;, Lesher Communicafions; .:Inc: v. City of Walnut Creek
(1'990) 52 Ga1.3d 531, 544;,Citiiens of Goleta T/alleyv. Board ofSupervi.rors• (.1;990.):52 Cal,3d
55:3., 570.) Here, the proposed amendments to the General: Plan would cause horizontal.
inconsistencies iri the .county's General Plan. and the Project itself would be inconsistent with the
General 'Plan, even as amended.
.Horizontal. Inconsistencies
First, the proposed General. Plan amendments.would;cause horizontal inconsistencies:intbe..
County's General Plan. The Project seeks to re-designate parcels APN No: 019-320-023 and
No. 0.19-320=022 from. Limited Commercial to .Limited Industrial, despite the fact that'the
majority of the Project site is~in a;mapped floodhazard.zone and has° significantgeotecl~nical
hazards due to soil instability.::Section 2.4 of the General :Plan 2020 .requires that any proposed
re-designation of.land to Limited Industrial ".shalI riot:he in~areas subject to flood.... and
geologic hazards." Notably, the County's ~Gcneral Plan policies for Limited Commercial do,not
' contain the limitation on development in;flood hazard' zones. The reasoning far this distinction;
`between,Limrted~Commercal and Limited Industrial Iand use policies i"s clear. ndiistral uses
are irilierently mores<dangerous,than.commercial uses; and may result zn a greater degree,of
`damage to the„ envraiim`ent;, than commercial uses. Here, for example, should the .Petaluma
River #Iood the Project 'site after the Project is constructed,. there :is<risk that the chemicals and
hazardous;substances stored on site could contaminate he Ritter. Similarly, should-the soil
characteristics of-the site cause soil failure, the;damage to both the Project and ao the River could . ,.
~ve severe. The proposed text amendments seek to ~rclude what is essentially aproject-specific
carve. out from these requirements, allowing Limited^Industrial use in a flood zone, butonly for
the Pr_ojecf. However, such an amendment:does not, reconclethe General Plan policy conflict in
placing°industrial uses at an inappropriate site;given°the flooding and geologic hazards.
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The Staff Report reeognzes~this inconsisteney'andottempts fo reason its way out ofthe conflict.
The',S"toff R`eport's reasoning, however, falls far short of resolvingany inconsistencies. First, the
Staff.Repoxt fakes issue with the FEIv1A maps, 'claiming that a "majority" of°the area is actually
out of the flood zone despite the. mapping to the contrary: This conclusion, however, contradicts
the evidence in. the EIR, which. states that "[a]reas.. of the site that wou~ld~ not be expected. to .flood
are the small hill in Area B and the western margin.of Areas C and D.". {DEIR, Page V.G-T..)
Moreover, as the DEIR recognizes,, since the Petaluma River is tidally :influenced, the River
levels. are expected to rise with the sea level rise in the future; meaning that the,Fl/MA mapsare
actually insufficieirt to show the-extent of flooding in a future 100 year storm, rather than being
too conservative as argued in the Staff Report. (Id. Page V°G=8.)
Even if were true that the EIR-co_nservahvely estimated the areas of the Project.-site"that` would be
subject fo flooding, the Staff Report does not claim that all.,of the Project site would be free from
flooding. The General Plan, however, does not make an exception for land that is only"partially
subject to flooding hazards. The. language; of section 2.4 is:clear that the Limited Industrial
designation should not be applied,where the property is subject to flooding at all.
The General Plan policy- in section Land :Use. section 2.4 also .requires that the lands be re-
designated only to recognize.an existing permitted use. The staff report notes that only one of
the two parcels has some "reported" iridizstrial use and the other had none. {Staff Report, Exhibit
B, p. 2.) Dutra argues that :because it previously has operated a similar use on another parcel, it
has an existing use: (Id,) This argument. is nonsensical. Clearly the Policy was intended to
recognize an existing'use on the: ame'parcel not an existing use on same :other parcel that,
.happened to b"e industrial. The fact that;:the. owner o.f a parcel of property atone time: operated an
industrial use on a com letel se crate creel cannot '`~e.the~ ro ert owner the ri ht to re-
P Y~ P P ~ P -P y g
designate another parcel as' industrial. Otherwise what is to prevent Dutra; or any other industrial
user for that' matter, .from claiming that any land within the County should be re-designated as
Limited Industrial simply because that user operates an industrial use; on another site? This
would render the County's General Plan latid'use des.ignatioiis~ineanngless.
Thus the proposed General Plan amendments would eause~~tetnal,inconsistencies in the General
..Plan by allowing the re-designation to Limited. Industrial despite>clear mandates in the General
PIan:not to aalowsuch a re-designation:
-Project.Insonsistencies with the General Plan
Izi addition to afie ~hor"izontaf inconsistency, the Project is inconsistent with.mandatory General
'Plan'-policies; a"s well.
Policy NE- l: c and Table. NE-2. The. County's General Plano prohibits the Coun. ty from
approving any project that would cause noise impacts exceeding (hose allowed under the Generale
Plan. Specifically, Policy NE-1c states that the "total.noise level resulting from new sources
shall not exceed the standards in Table NE-2 as "measured at the exterior property line of any
a The County's General Plan 2020 appears to have morestringentnoise standards than the prior General Plan. Thus,
where the 13IR identified conflicts between the,Project and the County's:noise requirements underthe old General
Plan, these conflicts would exist under the General Plan 2020 as well.
Za
adjacent noise sensitive land use," {Empb.asis added.) The EIR indicates that; even as mitigated,
'the Project will result. in noise. impacts in.excess of the County's standards at.several sensitive
receptors, both from individual cornponenfs of the Project and from the Project's operations as a-
whole. Thus, the ,County cannot approve thi Project since it will conflict with PolicyNE-lcand
other Noise;Element Policies.
The Staff Report's solution to this problem.is to have the County carve out another project -
specific policy that would exempt-.the Project from compliance with the,County's noise
standards. This "solution" would only create further- error; however, both creating fiirther
horizontal inconsistencies in the General Plan and, because the project described and analyzed in
the EIR made no mention of.such an;amendment, creating further CEQA error as weh.
Moreover, as a procedural .matter, amendments to the General: Plan cane only be initiated by
application or by the County itself Since Dutra has not applied'. for the amendment, the
amendment is not properly before the County for consideration'as part of the Dutra application:
Policies LU-7a and LU-7c: LU-7a requires the County to avoid ,General Plan amendrnentsahat
would allow additional development in flood plains, unless the development is both low intensity
and does not include large perrnanerit structures. Since the Project does ixaclude large permanent
structures, the proposed General Plan .amendments: would' also create an inconsistency with this
policy. Similarly, LU-7c'requires the County`to "[p]rohibit;newstructures within any floodway
[and] ,[r]equire that any developmentthat.may be permitted within the flood plain be raised
. above. the 1.00 year flood elevation. The Project is inconsistent with.this policy as well.
Policy LU-19. The, Project is'also inconsistent with Policy LU-1.9. The Staff Report concludes
that the General Plan- 2020's addition of the following sentence has remedied any inconsistency
between the Project and this policy:
"However, consider additional river dependent-commercial: uses and` industrial uses -along the.
Petaluma River,. where necessary to maintain the river as a i~avigable waterway connectr'ng the
13ay.to downtown Petaluma." (Emphasis added.)
The .Staff Report finds that becausethe Project will use the' River to import materials by barge;
the Project counts. as a "river,dependent" use. Whether the Project.is `°river dependent,"
however, is questionable. Certainly the Project will-make use ofthe Raver,. but the Project's
materals~ean also be brought in by land as evidenced by. the "start-up" phase, making the River°a
convenience,rather than a necessity for the project. Iii;any,event, the Staff Report completely
ignores the.lughli:ghted. clause of this' po.Iicy, which:-requires that:the river dependent -uses be
.necessary to maintain the: River-as a navigable waterway between,the'Bay and the City. ,There is
no euderce' that the,Project is necessary to maintain the River as a navigable waterway. In fact,
the 500% increase in,.barge traffic may actually impair the. ability of the River to function as a
navigable waterway.
Policy OSRC-Bb establishes."streamside conservation areas" in the frst 50 feet from the top of
the bank ~ofth'e..P,etalum.a.River. Policy OSRC-8c requires the County to require land use and
development to: comply with.Policies OSRC-Bd.and OSRC-8e. OSRC-8d, in turn, limits any
development an the steamsde conservation area to a short list of allowed uses, none. of which
2l
include-the Project's components. Policy OSRC-8e pro.ydes for certain exceptions to Policy
QSRC-&d. The only exception that could. apply here is if Dutra proposed, and the County
adopted, a "conservation plan" that protects "biotic resources, water quality, flood-management,
bank.stablity, grouidwater recharge, and other applicable riparian,functons." No such
conservation plan has been proposed by Dutra; nor reviewed and commented on by the public
and public agencies. Until •such a plan is proposed; .any approval of the Project by.the County
would be in conflict with these policies.
:For al] ofthese reasons, the Gountycannot approve aproject that will cause both horizontal anal
vertical inconsistencies with the County's General Plan.
Conclusion
Though the City recognizes that this type of use .may be irnportaiit to-the infrastructure needs
throughout the County, the Project„ as proposed, is simply incompatible with the. chosen location.
The City urges the Countyto reject this Project altogether. If the County determines to go
forwa..rd with the Project;.however, the County must fully comply with CEQA and the State
Planning and Zoning Laws before doing so.
.~----
Best regar s, ~,
~r ~ ~,..-- l', ,1~~ .
Pamela Torliatt
Mayor:
Attachments:
1. OPR Technical.Advisory`"CEQA and Climate Change"
2. Proposed CEQA Guidelines
3. Sonoma County Community Climate Action Plan .
1225418' .DC7C
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