Author Archives: Elizabeth Pollock

Responses to Comments on a Draft EIR Carry the Day in Challenge to Oil Refinery EIR

On March 20, 2018, the First District ordered published its decision in Rodeo Citizens Association v. County of Contra Costa, which involved a challenge to an EIR prepared for a propane and butane recovery project. Specifically, the Court of Appeal affirmed the trial court’s judgment that substantial evidence supported the EIR’s air quality, greenhouse gas (GHG), and hazards analyses.

Background

Phillips 66 Company (Phillips) owns two refineries, one near Santa Maria, the other near Rodeo. The Santa Maria refinery processes heavy crude oil, then sends it via pipeline to the Rodeo refinery where the product is finalized into petroleum products. The Rodeo refinery is able to process both heavy and light crude oil into petroleum products. In addition to the Santa Maria refinery, the Rodeo refinery receives crude oil from a variety of domestic and foreign crude sources delivered via ship. The final products are shipped by rail from the refinery for sale.

In June 2012, Phillips applied to Contra Costa County for a permit to modify the existing Rodeo facility and add new facilities to enable Phillips to recover butane and propane and ship it by rail for sale.

In June 2013, the County released a Draft EIR for the Project. A Final EIR was released in November 2013. Based on comments from the Bay Area Air Quality Management District, the Board of Supervisors ordered staff to prepare a Recirculated EIR (REIR) addressing the air and health issues raised by the Air District. After circulating the Draft REIR, in early 2015, the County published a Final REIR and approved the project.

Rodeo Citizens Association (Citizens) filed a petition for writ of mandate, alleging the EIR’s project description was inaccurate; the EIR failed to address the increased risks of accidents from train derailments or explosions caused by the project; and the EIR insufficiently addressed the project’s impacts to public health, air quality, climate change, and cumulative impacts. The trial court found certain deficiencies in the air quality section of the EIR, and issued a writ of mandate requiring the County to reconsider that section, but rejected the remainder of Citizens’ arguments. Citizens appealed.

The Court of Appeal’s Decision

Citizens argued the EIR’s project description incorrectly defined the project to include only the recovery and sale of propane and butane from refinery fuel gas. According to Citizens, the real purpose of the project was to allow Phillips to process increased amounts of non-traditional crudes, including imported tar sands and Bakken crudes, which contain higher levels of dangerous chemicals and result in worse air pollution during the refining process. Citizens contended the EIR’s project description violated CEQA for not disclosing the true scope of the project, which, in turn, caused the EIR to understate the project’s impacts. The court found, however, that substantial evidence supported the REIR’s project description. In particular, the Final EIR included a master response directly addressing the “project description,” which presented substantial evidence that the refinery would use its existing fuel gas stream to extract propane and butane, and the project is not dependent on new sources of crude oil feedstock. Citizens “only weakly” contested the accuracy of the master response and failed to demonstrate the County lacked substantial evidence for the project description.

Turning to the EIR’s GHG analysis, Citizens contended the analysis violated CEQA because it failed to consider GHG emissions resulting from the combustion of propane and butane by downstream users. The EIR addressed the issue of downstream users, but concluded that due to the lack of data and changing market conditions, it was not possible to determine to which uses purchases of the propane and butane would be put. In many instances, a switch to propane actually reduces GHG emissions as compared with gasoline and diesel. Indeed, California has adopted a program to encourage companies to switch from gasoline/diesel to propane. Ultimately, the EIR concluded that it would be too speculative to reach a conclusion regarding the significance of the Project’s GHG impacts resulting from downstream users. The Court of Appeal held that substantial evidence, including comments from the Air District, supported this conclusion.

Regarding the project’s public and environmental health hazards impacts, Citizens argued that the EIR failed to assess the impacts of the project on a child care center located approximately 500 feet from the rail lines on which the propane and butane would be transported from the refinery. The court first observed that this argument was “arguably barred” by the exhaustion doctrine, because Citizens failed to raise it prior to the County’s approval of the project. In any event, although the EIR did not specifically address how the transport of the project’s hazardous materials might impact the child care center, the EIR disclosed that the risk zone for rail transport under the project was 262 feet from the tracks. At around 500 feet away, the child care center is safely beyond this distance.

Finally, Citizens contended the EIR’s cumulative hazards analysis was inadequate because it failed to consider sufficiently the cumulative risk of rail accidents. The Final EIR’s response to comments on this issue explained that most of the projects cited by the commenters are located a substantial distance from the refinery and do not involve the transport of liquid propane gas by rail. On appeal, Citizens argued this response was inadequate because “CEQA does not require a nexus between projects or that they be of a similar type to be included in a cumulative impact analysis.” The court found, however, that the County’s explanation for why a cumulative analysis for transportation hazards was not included was not unreasonable, which is all that CEQA requires.

Conclusions and Implications

Because the court applied the deferential “substantial evidence” standard of review to Citizens’ claims, the burden was on Citizens to show that the County lacked substantial evidence to support the EIR’s factual conclusions. Here, the County had taken care to respond in detail to the substantive issues raised in comments on the Draft REIR, thereby providing a road map of the evidence supporting the EIR’s analyses and conclusions. The case thus highlights how thorough responses to comments can “save the day” in litigation.