Kings County Farm Bureau v. City of Hanford

• Decision Date: 21 June 1990
• Docket Number: No. F011485,F011485
• Citation: 270 Cal.Rptr. 650,221 Cal.App.3d 692
• Court: California Court of Appeals Court of Appeals
• Parties: KINGS COUNTY FARM BUREAU et al., Plaintiffs and Appellants, v. CITY OF HANFORD et al., Defendants and Respondents. GWF POWER SYSTEMS COMPANY, INC. et al., Real Parties in Interest.

Page 650

270 Cal.Rptr. 650

221 Cal.App.3d 692

KINGS COUNTY FARM BUREAU et al., Plaintiffs and Appellants, v. CITY OF HANFORD et al., Defendants and Respondents GWF POWER SYSTEMS COMPANY, INC. et al., Real Parties in Interest.

No. F011485.

Court of Appeal, Fifth District, California.

June 21, 1990.

Certified for Partial Publication ^*

As Modified on Denial of Rehearing July 20, 1990.

Review Denied September 17, 1990.

[221 Cal.App.3d 706] Remy and Thomas, Michael H. Remy, James G. Moose, Sacramento, Shute, Mihaly & Weinberger, E. Clement Shute, Jr., Alletta d'A. Belin, San Francisco, Harriman & Gabrielli and Richard L. Harriman, Modesto, for plaintiffs and appellants.

Latham & Watkins, Christopher W. Garrett, Karna J. Peters and Philip G. Evans, San Diego, for real parties in interest.

No appearance for defendants and respondents.

No appearance for real parties in interest Armstrong Tire Co., Armtec and Pacific Gas & Elec. Co.

OPINION

STONE (WM. A.), Associate Justice.

In this appeal we are called upon to determine the sufficiency of an environmental impact report (EIR) for a proposed 26.4 megawatt coal-fired cogeneration plant to be constructed in the City of Hanford (City). We are also asked to determine (1) the sufficiency of the evidence contained in the EIR to support the determination of the Hanford City Council that the proposed project would have no significant impact upon the environment and (2) whether the city council had authority to approve the project in light of the "Hanford General Plan" (General Plan), which appellants claim is defective.

Appellants are three associations: Kings County Farm Bureau, Kings County Citizens for a Healthy Environment and Citizens for a Healthy Environment. They challenge the EIR on several grounds, which we generally categorize as (1) the adequacy of the discussion of the impact of this project on the local environment with regard to air quality, water use and waste disposal, (2) the adequacy of the discussion of the cumulative impacts of this project and similar projects with regard to air quality, water use and waste disposal, (3) the adequacy of the discussion of alternatives to the proposed project, and (4) the adequacy of the project description. Because of the alleged inadequacy of the EIR, appellants contend there is no substantial evidence to support the determination by respondent Hanford City Council to certify the EIR as complete and to approve the project as proposed by real party in interest, GWF Power Systems Company, Inc. (GWF). Appellants also argue the General Plan is legally deficient with regard to land use, circulation and conservation elements, rendering approval of the project null and void.

Because we will conclude the EIR is inadequate because it contains insufficient information in several respects for the Hanford City Council to have made an informed decision whether to approve the project, we do not reach the question whether there is sufficient evidence to support the council's determination of no significant impact. We will also conclude the General Plan is insufficient to establish the city council's authority to approve the project.

Because of the large number of issues raised by appellants peculiar to the Hanford project and its EIR, we publish only those portions of this opinion dealing with principles that, in our estimation, have not been sufficiently addressed by prior cases, along with selected examples of how those principles apply to claimed deficiencies in the EIR.

FACTUAL AND PROCEDURAL BACKGROUND

History of the Project

In 1985 the Armstrong Tire and Rubber Company was on the verge of closing its Hanford plant, which would have caused the loss of approximately 600 jobs. As a result of negotiations, the employees and the company avoided a plant closure when workers agreed to wage concessions and Armstrong agreed to investigate locating a cogeneration facility next to the plant in order to reduce its second largest expense, energy. Cogeneration is the simultaneous production of thermal energy, such as steam, and electricity. In response to Armstrong's need for such a facility, GWF proposed building a cogeneration plant to be located next to the Armstrong plant. GWF purchased an adjacent 3.5-acre parcel from Armstrong for that purpose. The proposed plant would have the capacity for an average net production of 19.9 megawatts of electricity and 35,000 pounds of steam per hour. GWF entered into an agreement to provide Armstrong with a minimum of 28.3 million pounds of steam per year, which would require the plant to supply steam to Armstrong approximately 34 days each year. The Public Utility Regulatory Policies Act of 1978, required Pacific Gas and Electric Company (PG & E) to purchase electricity produced by GWF at a fixed rate. Accordingly, GWF and PG & E entered into a 20-year "Power Sales Agreement."

Project Description

The cogeneration project proposed would use a fluidized bed combustion system (FBC) which would burn 288 tons of low-sulfur coal per day in a bubbling bed of sand and limestone. The bubbling or churning effect of the system would be achieved by blowing air up through the bottom of the bed. The heat generated by the FBC would be used to convert water into high-pressure, super-heated steam which would be delivered by underground piping across the street to the Armstrong plant. The steam would also be used to produce electricity.

The system would emit particulate matter (dirt or dust particles), sulfur dioxide (SO sub2 ), nitrogen oxides (NO subx ), carbon monoxide (CO), nonmethane hydrocarbons (NMHC), and trace metals. All of these elements are "affected pollutants" for which air quality standards have been set by the Environmental Protection Agency (EPA) or the California Air Resources Board (CARB). The source of particulate matter is the coal, the limestone (also referred to as sorbent) and the ash-handling systems. GWF expects to eliminate 98 percent of the particulate matter by covering the trucks which deliver the coal and limestone, totally enclosing the conveyance network by which the coal and limestone are transported to the FBC system, and ventilating through a high efficiency fabric filter. The source of NO subx and SO sub2 is the FBC process. GWF proposes to reduce NO subx by 85 percent by low combustion temperatures, low excess air combustion and the injection of ammonia. Injection of limestone into the FBC system would control 94.7 percent of the SO sub2 pollution. GWF expects control of CO, NMHC and trace metals from "extremely high combustion efficiency."

Coal for the project would be delivered by train to a coal storage supply terminal outside Kings County. From the supply terminal the coal would be transported to Hanford in 25-ton, five-axle, double trailer trucks and stored in a silo capable of handling a four-day supply (1,200 tons). The project would require 16 truckloads per day.

GWF anticipates the project would use 382 to 444 acre feet of water each year from the City of Hanford's water system. Waste water generated by the project would be processed through a treatment system for recycling into the cooling tower. The waste water that cannot be treated at the facility would be transported by an industrial water company to a treatment and disposal facility in Los Angeles.

The combustion process would produce approximately 32.5 tons of nontoxic, nonhazardous waste ash per day which GWF plans to sell to a commodities broker for use in the manufacture of cement or plasterboard. Any waste ash that cannot be marketed would be deposited in a landfill outside the Hanford area.

Environmental Review Process

GWF submitted the first of several Operational Statements for the proposed cogeneration facility in June 1986, and a second statement in July. GWF also submitted a "Health Risk Assessment" concerning two proposed GWF facilities in Fresno County which are similar to the proposed Hanford facility. During the following three months several city departments submitted comments regarding the plant's use of chemicals and problems regarding air pollution, water pollution and use, and waste disposal. GWF submitted a "First Revised Operational Statement" in December 1986. The following month the Hanford City Manager's office filed a notice of intent to adopt a "Negative Declaration." The notice indicated that based upon the initial study, it had been determined that "the effects of the project, as described, would be mitigated to a point where clearly no significant, adverse impact on the environment would occur." Despite numerous objections to the negative declaration, including requests from the CARB, the California Attorney General and the Kings County Water District (KCWD) for the preparation of an EIR, the City approved the negative declaration on April 7, 1987.

KCWD ultimately withdrew its request for an EIR after entering into an agreement (mitigation agreement) pursuant to which GWF agreed to contribute financially to the water district's ground water recharge program. The Attorney General, the Citizens for a Healthy Environment and Agribusiness Advocates filed suits against the City for its failure to prepare an EIR. The parties settled the lawsuits when the City agreed to prepare an EIR.

The City hired Dames & Moore, an environmental consulting firm, to assist in the preparation of the EIR. The draft EIR (DEIR), released October 16, 1987, concluded the project would have no significant adverse effect on the environment. During the public comment period state agencies, private business interests, citizens groups, and private individuals commented on and objected to the DEIR. The final EIR incorporates these comments and responses to them.

City staff submitted the EIR to the Hanford City Planning Commission on February 9, 1988, ¹ and recommended that the commission certify it as complete. The planning commission initially referred the project back to Dames & Moore for...