
Members of the Stop the Trucks Coalition and our many allies made a strong presentation today in Santa Maria on our case to block gravel trucks from the proposed Diamond Rock Mine in Santa Barbara County. The hearing has been continued until July 11th. More information to follow...
Enclosed below is a document from our environmental attorney that was filed and presented today that vividly lays out our concerns. A report from our enviromental expert was also filed and will be posted separately.
This promises to be a long fight... Please contribute generously to the cause....
CHATTEN-BROWN & CARSTENS
3250 OCEAN PARK BOULEVARD
SUITE 300
SANTA MONICA, CALIFORNIA 90405
www.cbcearthlaw.com
TELEPHONE:(310) 314-8040
FACSIMILE: (310) 314-8050
E-MAIL: JCB@CBCEARTHLAW.COM
May 29, 2007
By hand delivery, and
Facsimile (805) 568-2030, and
email: Cynthia@co.santa/barbara.ca.us
Santa Barbara County Planning Commission
123 East Anapamu St.
Santa Barbara, CA 93101-2058
Re: Diamond Rock Mine Project; (03CUP-00000-00037 & 03RP-00000-00002; 05EIR- 00000-00001)
Honorable Members:
We write on behalf of the Coalition to Stop the Trucks, which is a Ojai Valley based organization that was created to oppose the "industrialized" use of State Route (SR) 33 and the Ojai Valley by gravel and rock-mine transport trucks embarking from the Los Padres National Forest because of the impacts such trucks would have on the National Forest, recreational users, and the health, safety and environment of the entire Ojai Valley. This letter is preliminary, since we were only very recently retained by the group. We anticipate that we will provide further analysis. Also, this letter should be read in conjunction with the letter of this date from David Magney Environmental Consulting Company, also on behalf of the Coalition to Stop the Trucks, which addresses certain biological, traffic, and air quality impacts.
I. The Project
Clearly, this is a very controversial project. There were at least 300 individual comment letters on the project, and many governmental entities and organizations expressed deep concerns, or outright opposition, to the project. Such opposition is understandable. As described by the EIR, if the project is approved, aggregate would be extracted over a 30-year period from an 84-acre mining area located in the Cuyama River channel along State Route 33, approximately 5.9 miles southeast of its intersection with State Route 166. Material would be excavated from the riverbed using heavy mobile equipment and transported by trucks, scraper or conveyor. The maximum anticipated depth of the mine pit is 90 feet below ground surface. In addition to the mining, there would be at a 14.2-acre Processing Area adjacent to State Route 33.
II. Impacts to the National Forest and the River Corridor’s Biological Resources
This project would thus immediately impact an area with great recreational and biological value. As the United States Forest Service said of this portion of SR 33:
The Chief of the Forest Service in 1995 designated the segment of SR33 through Los Padres National Forest as the "Jacinto Reyes National Forest Scenic Byway." The byway was established because of the highway corridor's outstanding scenic, cultural, historic and interpretive values. This segment of SR33 provides an exceptional motor touring opportunity, offering views and access to four congressionally designated wilderness areas and the Sespe Wild and Scenic River corridor. SR33 serves as a key access point to the national forest for recreationists from Kern, Santa Barbara, Ventura, and Los Angeles Counties; it also attracts visitors from around the world. Additionally, SR33 is a State Scenic Highway. The California Scenic Highway Program serves to preserve and protect scenic highway corridors from changes that would diminish the aesthetic value of lands adjacent to highways.
According to the Forest Service, the project would affect people driving for pleasure, camping at Wheeler Gorge, Rose Valley, and Pine Mtn. campgrounds, and people dispersed throughout the forest seeking recreation.
The Department of Fish and Game and the Federal Environmental Protection Agency have submitted extensive comments articulating the level of analysis that is required, but that analysis has not been provided.
III. Air Pollution Impacts
A. Criteria Emissions
Criteria pollutants have been addressed at length by others, so we only wish to make a couple of additional points at this time.
First, the project will contribute significant amounts of NOx to the airshed. According to EPA, NOx:
• is one of the main ingredients involved in the formation of ground-level ozone, which can trigger serious respiratory problems.
• reacts to form nitrate particles, acid aerosols, as well as NO2, which also cause respiratory problems.
• contributes to formation of acid rain.
• contributes to nutrient overload that deteriorates water quality.
• contributes to atmospheric particles, that cause visibility impairment most noticeable in national parks.
• reacts to form toxic chemicals.
• contributes to global warming.
(http://www.epa.gov/air/urbanair/nox/chf.html)
While the EIR claims that the significant impact from the addition of NOx into the airshed can be mitigated to a less than significant level by limiting the daily truck trips and thereby reducing annual production to 540,000 tons, (3.7-17), the project applicant has indicated its unwillingness to abide by the suggested mitigation measure. (See, comment letter from Troesh.) Indeed, it claims that the mitigation measure “is not feasible and not consistent with the project description.” (Troesh at 14.) Thus, it appears that the project applicant itself plans to object to enforcement of this mitigation measure which will render enforcement more difficult. However, even if the measure were enforced, it appears that the claim that it can be reduced to an insignificant level is supported by sleight of hand mathematics. The EIR assumes 365 days of hauling, which is extremely unlikely, and simply excludes concrete rubble truck trips from the calculation without any justification. (3.7-17.)
Second, the scope of the cumulative impacts analysis is improperly narrow. By focusing only on the cumulative impacts of the Diamond Rock Mine and other mines, it ignores that the cumulative environmental impacts that must be disclosed in the EIR will result from other types of projects. For example, under air quality, the EIR states that major sources of ozone in the County are motor vehicles, the petroleum industry, and use of solvents. 3.7-4. “PM10 is generated by a variety of sources, including windblown dust, grading, agricultural tilling, road dust, and quarries.” 3.7-4. Mining impacts must be considered along with the past, planned, and reasonably foreseeable future projects. (CEQA Guidelines, section 15355.)
Third, the truncated discussion of construction impacts fails to properly inform the public and decisionmakers of potential impacts. It claims that this impact will be less than significant without providing any quantification of the impacts. For example, construction would involve road grading [3.7-6], which the EIR acknowledges is a major source of PM10. [3.7-4.] Yet, it provides no information as to the likely extent of PM10 generated from this aspect of the project. Without justification, the EIR claims that construction impacts will be “adverse, but less than significant.” The EIR’s conclusion that these impacts are not significant because they are “temporary” and “a small fraction of the total County-wide emissions from all point, mobile, and area sources” has no factual or legal basis. Given that the County is already out of attainment for ozone and PM10, it will be critical to know the extent of these pollutants added by the project’s construction. Because the EIR fails to quantify the construction emissions, it does not indicate whether the threshold for significance it identifies (less than 25 tons) will be exceeded. Moreover, it does not state where this threshold is taken from. The EIR must provide more information about construction impacts.
B. Greenhouse Gases and Climate Change
Although the EIR acknowledges that climate change is a major environmental concern, as reflected in the state’s passage of AB32, it provides no analysis whatsoever of the project’s contribution to global warming. It states only that “[a]t the present time, there are no specific inventory or control requirements related to greenhouse gas emissions that apply to the project” [3.7-5] and that “there is no evaluation procedure to estimate the effective contribution of a single project towards global warming.” This does not preclude the EIR from disclosing as much as possible about climate change impacts. The increased traffic and internal combustion used in operations will cause emissions of greenhouse gases. These contributions must be quantified and disclosed. If the project impacts are significant, or “cumulatively considerable”, as the Coalition believes they are, then they must be mitigated to the extent feasible.
Climate change will aggravate the project’s adverse impacts. Santa Barbara County is in nonattainment for one hour ozone and likely will be found to be in a state of nonattainment for the eight hour ozone standard when this is established. (3.7-4) NOx is an ozone precursor that will produced by the project in significant quantities. EPA also identifies NOx, which the project will produce in significant amounts, as a greenhouse gas. (See, http://www.epa.gov/air/urbanair/nox/chf.html)
Global warming will aggravate ozone formation and make it even more difficult to attain the ozone standards in Santa Barbara County.
C. Diesel Emission
This project would generate a large amount of diesel emission from the trucks associated with gravel hauling. Diesel has a profound range of health quality impacts and contains numerous pollutants that are not sufficiently disclosed and analyzed in the EIR. A major study undertaken for the South Coast Air Quality Management District (SCAQMD) found “motor vehicles and other mobile sources of air pollution are the predominant source of cancer-causing air pollutants in the Southland.” (MATES II Toxic Air Pollution Study Announcement, p. 1.) This study, known as the Multiple Air Toxics Exposure Study (MATES-II) dated March 2000, “found that diesel soot accounted for 71% of the cancer risk” from air pollutants in the Southland. (Id, p. 2.) A copy of the Executive Summary of this study, and the entire study, are available at the SCAQMD website at http://www.aqmd.gov/matesiidf/matestoc.htm and are incorporated by reference. The Natural Resources Defense Council also maintain information sheets about the health effects of diesel pollution on its website at http://www.nrdc.org/air/transportation/trk0600.asp.
One component of diesel exhaust is PM 2.5 (particulate matter of 2.5 microns in diameter). Although the EIR states that there is not yet enough data to determine the County’s attainment status for PM 2.5 under state or federal standards (FEIR 3.7-4), that does not excuse the EIR from disclosing the project’s contribution of this serious pollutant to the airshed. Diesel engines, which the project would employ in substantial numbers, are a significant source of PM 2.5 pollutant. (68 Federal Register 28327 (May 23, 2003), p. 28343, 28339.) PM 2.5 contributes to a number of serious health problems and thus the extent of the pollutant and its likely impact must be disclosed. (Id.) We incorporate 68 Federal Register 28327 (May 23, 2003), pages 28327-28376 by reference; it is available on the Internet at http://www.epa.gov/cgi-bin/epaprintonly.cgi.
The EIR lists toxic air contaminants potentially associated with the project (FEIR, p. 3.7-3), but it fails to disclose others that are associated with diesel emissions including 1,3 butadiene, benzene, and carbonyls. (MATES II Announcement, p. 2.)
The EIR assumes “that anticipated diesel exhaust control technology will be installed on both new and used pieces of equipment within the project” so considers the impact potentially significant but mitigatable. (FEIR 3.7-21.) However, there must be an analysis of what impacts would be using existing technology since there is no basis for assuming that retrofitting existing equipment is likely, since it is not proposed to be mandatory.
Moreover, the health impact assessment looks only at increase in cancer risk, ignoring increases in asthma and other respiratory ailments that the added pollutants would cause. According to the EPA, “acute or short-term exposure to diesel exhaust can cause acute irritation (e.g., eye, throat, bronchial), neurophysiological symptoms (e.g., lightheadedness, nausea), and respiratory symptoms (e.g., cough, phlegm). There is also evidence for an immunologic effect such as the exacerbation of allergenic responses to know allergens and asthma-like symptoms.” (68 Federal Register 28327 (May 23, 2003), p. 28343.)
Furthermore, emissions from diesel engines “contribute to regional haze and impaired visibility across the nation, as well as acid deposition, POM deposition, eutrophication and nitrification, all of which are serious environmental welfare problems.” (68 Federal Register 28327 (May 23, 2003), p. 28343, 28336.)
Deposition of nitrogen from diesel engines contributes to elevated nitrogen levels in waterbodies, which results in eutrophophication. “Eutrophication is the accelerated production of organic matter, particularly algae, in a water body. This increased growth can cause numerous adverse ecological effects and economic impacts, including nuisance algal blooms, dieback of underwater plants due to reduced light penetration, and toxic plankton blooms. Algal and plankton blooms can also reduce the level of dissolved oxygen, which can also adversely affect fish and shellfish populations.” (68 Federal Register 28327 (May 23, 2003), p. 28343, 28352.) These potential effects should be analyzed, especially because of the potential impacts on the Cuyama River from diesel exhaust whether through eutrophication or deposition of the toxic air contaminants contained in diesel exhaust mentioned above.
IV. Safety Impacts
Safety impacts are a very serious concern, but they have been addressed adequately by others. Suffice it to say at this point that independent truckers often have trucks that are unsafe, as well as dirty, as was dramatically shown when a truck was involved in a fiery in Oakland, bringing down part of the interchange of 80 and 580, and snarling Bay Area traffic. Considering that SR 33 is extremely narrow and windy, the proposed increase in heavy duty trucks, especially when considered cumulatively, is likely to have deadly consequences. Further, gravel and rocks coming out of aggregate trucks may cause accidents involving the vehicles behind the trucks, even if the trucks are not involved in the accident themselves.
V. Traffic Impacts
According to the FEIR, increased truck traffic along SR 33 is expected to average about 18 trips per day, assuming dispersed delivery patterns as expected and an average production day (28 trips per day for peak production). However, the EIR should also have conducted a worst case. Further, from an air quality standpoint, the summer trips, which are likely to be greater, are more significant, and whether they are clustered around peak hours or are distributed throughout the day is important, and could be regulated as part of a permit. Moreover, according to the Forest Service, the number of truck trips on SR 33, currently at 60 per day in this area, would be doubled.
Water Quality Impacts
A. Surface Water Impacts
The EIR fails to address important water quality issues raised in EPA’s letter to the Army Corps of Engineers and attached to a comment letter for the DEIR. The EPA’s letter identifies numerous potential impacts that the EIR never addresses despite the fact that the comments were before the agency. (It is noteworthy that the EIR’s summary of comment letters mischaracterizes and minimizes EPA’s comments.) Although an adequate EIR must address all of these important issues, in the interest of brevity, we will not repeat all of these comments here, but summarize a few particularly noteworthy concerns that go unanswered in the EIR:
1. The EIR does not analyze how the project will affect water quality objectives or numeric standards outlined in the Basin Plan for the Central Coast Regional Water Quality Control Board. (EPA Letter at 4.) EPA states that the proposed project “could result in potentially significant and long-term quality impacts on the Cuyama River.” (Id.) It notes that changes in sedimentation may result in the “hungry water” phenomenon, that activities within the river bed may cause changes in turbidity, and risk potential discharges of oil and grease. (Id.)
2. The EIR does not analyze dissolved oxygen concentrations or temperature impacts of the project that may affect aquatic species. (EPA 4.)
3. The discussion of cumulative water quality impacts is unduly narrow. By focusing exclusively on other mining operations, the EIR fails to consider the project’s impact when combined with the Twitchell Dam and Reservoir. Yet EPA noted the adverse impact this project is already having on unique and sensitive habitats. (EPA at 4-5.)
4. The EIR fails to address specific items listed by EPA as areas requiring analysis. EPA states that, “The CEQA/NEPA document should evaluate the effects of the proposed project on the following:
a. Changes to substrate elevation and bottom contours in the river both upstream and downstream of the project, and anticipated changes to the benthic community;
b. Changes in water circulation and fluctuations related to all aspects of the project including the weir proposed at the Deer Creek confluence. Consideration should be given to water chemistry, salinity, clarity, color, odor, taste, dissolved gas levels, temperature, nutrients, and eutrophication;
c. Changes in suspended particulates and turbidity during normal operations and flood events;
d. Changes in the structure and function of the aquatic ecosystem including aquatic and terrestrial resources;
e. Cumulative impacts to the Cuyama watershed including the operation and maintenance of the existing Twitchell reservoir; and
f. Secondary effects to the Cuyama watershed including adverse effects extending beyond the direct 100-acre footprint of the proposed project.
The EIR also makes the improbable claim that the sediment deficit created by the cumulative effects of the project in combination with the Diamond Rock mine will not have a significant effect because the “in-channel habitats at the mine site are very common in the region, are mostly scoured of vegetation from yearly flows, and do not support a high abundance or variety of wildlife.” (3.1-19.) This claim is made without reference to any supporting material regarding the habitat at the site. Yet, EPA lists a number of aquatic species that could be adversely affected by the project. Moreover, EPA identifies an important and “extremely rare” ecosystem, the Guadalupe-Nipomo Dune Complex, which is already adversely impacted by sediment deficits in the Cuyama River caused by the Twitchell Dam. (EPA at 5.) This Dam and ecosystem lie downstream from the project which will surely aggravate the existing sediment deficit threatening the ecosystem.
As EPA commented, the placement of the mining area within the streambed, as opposed to using an alternative upland site, means that it will directly impact 100 acres of water on site, in addition to the other impacts to the river. (EPA at 1.) Given the existence of the GPS mine and the Twitchel dam, an upland alternative must be seriously considered.
B. Groundwater Impacts
The EIR acknowledges that “high groundwater levels would be exposed in a fully excavated mine pit” and that this exposure would “further degrade the exiting groundwater quality which is very poor due to naturally high total dissolved solid levels.” (3.3-3.) Nonetheless, the EIR dismisses this important impact without quantifying the amount of groundwater exposed or the extent of contribution to water quality degradation that the project would contribute. (3.3-3) Moreover, it fails to address how groundwater would cumulatively be impacted by this exposure combined with the expansion of the GPS mine.
Moreover, it appears that exposure will occur long before the mine is fully excavated, as the EIR acknowledges that “the depth to groundwater may be as shallow as 20 to 40 feet below ground surface level in both the Processing Area and mine pit area during periods of high runoff.” (3.3-2.) Thus, groundwater is likely to be exposed long before the mine is fully excavated and that these exposures would occur during periods of high runoff when contaminants would be most likely to be transported into the water system.
Inadequate Response to Comments
The hundreds of pages of comments that were submitted were summarized and responded to in chart format, in just 39 pages. Of the 300 individual comment letters, only one (other than that of the applicant) was directly addressed. The FEIR states that it was not “practical” to respond to all of the comments, so the FEIR responded to the letter from Jennifer Lee, dated January 31, 2007, which was “considered representative of most issues of concern to residents in the Cuyama Valley”. “The remaining letters were all reviewed, and their general concerns and issues are discussed.” (Vol. II, H-1.) This does not comply with CEQA’s mandate to provide a reasoned and fairly particularized response to all comments.
Among the 299 comments that were not answered by the FEIR were the following specific comments (with page number references to the 646 page Volume III of FEIR that includes these comments). It will not be sufficient merely to respond to the comments we note below, since these are only examples of the reasons why specific responses must be made to all of the 299 comment letters in Volume III of the FEIR.
Page 4- raises issues of Miramonte School child safety and air pollution impacts, unstable mountain roads, need for fire evacuation routes shown by Day Fire.
Page 6- trailers producing metallic “boom” (different from other noise impacts from engines and jake brakes.)
Page 8- raises the “impact the trucks will have on the high school and hospital which they will be driving past. “There is also a new 22 unit senior mobile home park just now going in on Maricopa Highway.”
Page 13- time travel restrictions are being violated by the Ozena Valley Graves Mine and will likely be violated with regard to this project.
Page 14- “Two years ago, 3 of the 4 roads connecting the Ojai Valley with the rest of the world closed when extreme winter storms caused mudslides and rivers to undermine, cover and/or collapse on Highways 33 and 150 between Ojai and Santa Paula, Santa Barbara and Maricopa. Highway 150 is a narrow road that winds through mountains in both directions of Ojai. It is prone to collapse and closure during to storms, fire and other natural phenomenon (sic).”
Page 33- “Additionally the gravel trucks are not well identified and to report a chipped windshield or other problem is virtually impossible. I would recommend that each truck have clear ownership logo along with a telephone number and a truck number so that if a problem arises then the truck could be accurately reported.”
Page 34- similar comment to page 33, and concern re Nordhoff High School.
These comments are just examples of issues that individual commenters raise that are distinctly different from any others in the FEIR. We have not reviewed pages 61 through 646 of Volume III, but again, we note that people with specialized knowledge acquired from long familiarity with the area provide insights that are not provided by the agency comments to which the FEIR responded. Responses to each of the 227 comment letters in FEIR Volume III must be prepared.
Furthermore, the summary of the many of the government agencies and organizations do not reflect a fair characterization of the comments, and many of the responses are “non-responsive”. For example, when the Forest Service states that Jake brakes and truck noise would interfere with driving for pleasure, camping at Wheeler Gorge, Rose Valley, and Pine Mtn. campgrounds, and dispersed recreation, the FEIR responds that “In most segments, truck noise is considered less than significant. For the one area where
truck noise may be significant (south of the project site to Lockwood Valley Road), mitigation is identified (Mitigation NS-2).” However, this does not adequately address the impacts at the specific sites referenced. Similarly, Fish and Game contends that the potential effects on coast horned lizard may be significant. The response is: “Although the potential effects on coast horned lizard are not expected to be significant,
mitigation BIO-11 has been modified to include this species along with blunt-nosed
leopard lizard in the survey work prior to construction and mining.” This does not explain how that measure will reduce impacts below the level of significance. The comment by Fish and Game regarding the horned lark was met with a similar vague response.
In response to Fish and Game’s concerns about road kill, the FEIR states:
The EIR does address the potential for roadkill by vehicles operating within the project, and incorporates mitigation measures for this potential impact (mitigation measures BIO-9, BIO-10 and BIO-12). Total project trip generation will be 164 trips on a peak production day (118 on an average day). Existing traffic volumes on the state highways are much greater than this number.
But the number of vehicles is not the point. A greater number of roadkills is going to result from an 18 wheel truck than a compact car, and especially since some of these trips will be at night. And it is entirely unclear whether the FEIR is considering the number of species of special when it finds the roadkill impacts insignificant.
The City of Ojai said that Oja enforcement of traffic conditions will be impossible to monitor unless the applicant pays for code enforcement officer, and the response is that traffic mitigation measure T-1 provides that the County (of Santa Barbara) will inspect records regarding timing of trips and complaints received, without addressing the City’s recommendation or explaining how inspecting records will effectively address the problem. When the City recommended adding a mitigation measure to restrict travel on State Route 33 between 10 pm and 9 am to reduce noise impacts on residents, the FEIR responses “Santa Barbara County staff is working to coordinate mine permit conditions with Ventura County.” This hardly treats the City of Ojai as the interested and independent agency that it deserves to be treated.
The Ventura Air Pollution Control District asked for documentation of ISC modeling sources. The response was: “The project will require an Authority to Construct and a Permit to Operate from the SBAPCD. Modeling with appropriate documentation will be provided, if necessary, at that time.” However, that analysis should have been made part of the EIR, so that the information would be available to the lead agency, and to the public, before the critical land use permit is considered.
And the list of vague and non-responsive replies to comments goes on and go, throughout the 39 page chart that represents the response to comments.
Need for More Effective Mitigation Measures
Comments from many governmental entities and organizations, as well as individuals, have recommended various methods to assure that mitigation measures are effective and enforceable. Unfortunately, many mitigation measures remain inadequate as recommended by staff.
There is one particular mitigation measure that the Coalition to Stop Trucks wishes to address at this time. There has been considerable discussion about prohibiting trucks from going through the Ojai Valley because it is a unique and highly sensitive airshed. We understand that the Ventura APCD believes that the emissions would exceed the 5 pounds per day NOx threshold set by Ventura, but that the staff is now contending that the 5 pounds is not the appropriate level of significance. If this is true, the change of mind comes too late, since the EIR uses that standard throughout, while contending that emissions would be below that standard.
The Coalition believes that the only way to assure that the significant impact is mitigated is to prohibit gravel delivery trucks from Diamond Mine from using the SR 33 through Ojai Valley. This could be done in a condition of the Conditional Use Permit. However, in order for the Coalition and others to know that they can rely on that condition in the future, there would have to be a finding from the County that it was relying on the mitigation measure to reduce the impact below the level of significance. Thus, we recommend a finding along the following lines when and if the EIR is certified:
Based upon information presented by the Ventura County APCD and others, the County finds, despite the contention in the FEIR to the contrary, that there may be a significant adverse air quality impact from NOx emissions in the Ojai Valley, but that this impact can and has been mitigated by a prohibition on gravel delivery trucks from Diamond Mine from using the SR 33 through Ojai Valley.
We realize that this is a very complex matter, and sincerely appreciate your attention to our views.
Sincerely,
Jan Chatten-Brown
______________________________________________________________
To see the full environmental report from David Magney Environmental Consulting that was presenteed on behalf of the Stop the Trucks coalition at the hearing today, click here:
http://www.ojaipost.com/images/DMEC_FEIR_Comment_Letter-29May2007.pdf
Or, if that does not work, go to the first comment below and click there.
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