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October 3, 2011

Identifying the Appropriate CEQA “Baseline” for a Mine Extension, Expansion or Project Amendment

Identifying the Appropriate CEQA “Baseline” for a Mine Extension,Expansion or Project Amendment

by Jeffrey K. Dorso, Esq.

This article addresses the discrete legal question under mining law and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code § 21000 et seq.) as to what constitutes the appropriate “baseline” under CEQA for a mining permit extension, expansion, or amendment.

TYPICAL MINING PROJECT SCENARIO

 

Mining projects by their nature are complex, and often cover large expanses of land and take multiple decades to complete.  During the course of mining, operators often discover additional reserves either as part of the existing project or very near the existing project.  As a result, operators frequently file for subsequent discretionary approvals to extend, expand, or amend approvals relating to an existing, or related, mining operation.

These subsequent approvals often modify the existing mining operation in one of two ways: (1) by extending the term of an approved operation without changing the geographic footprint of the operation, or (2) entitle a new extraction source that utilizes a nearby – and already permitted – processing facility.

Under CEQA, the question then becomes what is the appropriate “baseline” of existing environmental conditions for the approving agency to consider when assessing the impacts of the project as part of its CEQA analysis.

CEQA BASELINE

 

“Baseline”

Under CEQA, lead agencies must identify the existing physical environment – i.e., the baseline set of environmental conditions – against which to compare a project’s expected impacts, in order to determine whether project impacts are “significant.”  (Save Our Peninsula Committee v. Monterey County Bd. Of Supervisors (2001) 87 Cal.App.4th 99, 119.)  The lead agency does this by measuring the increment between pre-project and likely post-project environmental conditions.  (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 955.)

CEQA Guidelines section 15125 generally defines the baseline as the physical conditions then in existence when the Notice of Preparation (“NOP”) is published at the inception of the environmental review:

An EIR must include a description of the physical environmental conditions in the vicinity of the project as they exist at the time the Notice of Preparation is published, or if no notice is published, at the time environmental analysis is commenced, from both a local and regional perspective.  This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.

(CEQA Guidelines, § 15125, subd. (a).)

CEQA lead agencies typically take a “snapshot” of the environmental conditions as they exist when the CEQA lead agency issues a NOP.  This is problematic for certain types of existing uses that fluctuate to market demand, such as mining projects.

Fortunately, courts have recognized that there may be instances in which calculating the baseline on the date of the NOP does not capture true pre-project conditions.  These courts reason that, by using the qualifying term, “normally,” section 15125 recognizes that in appropriate situations a lead agency has discretion to select a different baseline method that accounts for the circumstances presented.  (See Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1278.)  An alternative method must be supported by “reasoned analysis and evidence in the record.”  (Save Our Peninsula Committee, 87 Cal.App.4th at 120; see Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018, 1035 [lead agency need not guarantee that assumptions regarding future activities remain correct; it need only support its baseline assumptions with substantial evidence].)

In San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, the court upheld a baseline composed of an average of past mine operation.  The mine operator applied in 2000 for a conditional use permit to expand an existing aggregate mine.  The project would increase the area mined from 90 to 304 acres, and extend the quarry’s productive life. Without the project, the original 90-acre site would remain active for only another five years, but with the additional area the mine could continue producing for 30 years.  To identify the appropriate baseline for the mining project, the EIR used a four-year average of mine operations.  The court began its evaluation by stating that the baseline “must be premised on realized physical conditions on the ground, as opposed to merely hypothetical conditions allowable under existing plans.”  (Id., at p. 658.)  Applying this standard, the court upheld the averaging method as appropriate:

Since established usage of the property may be considered to be part of the environmental setting [citation omitted], and such usage was adequately shown by the annual production averages, we believe there is substantial evidence in the record to support the County’s use of 240,000 tons per year as a baseline for existing conditions on the 90-acre site.

(Id. at p. 659.)

In Fairview Neighbors v. County of Ventura (1999) 70 Cal.App.4th 238, an existing mining operation underwent CEQA review to approve a maximum quarry production of 810 truck trips daily.  The EIR was approved and certified in 1976.  Thereafter, in 1993, a new owner applied for a permit modification to expand the quarry and increase production levels. The EIR prepared for the project identified the “existing” as 810 truck trips daily, for baseline purposes, and in fact that quarry had exceeded this level in past operations. Opponents challenged the baseline as artificial, because traffic counts collected to prepare the 1993 environmental review were less than 810 per day.  The court rejected this argument and upheld the baseline.  The court characterized the existing conditions as a “long-operating mine,” and observed that actual traffic counts were “misleading and illusory” given the natural fluctuations of production that mines experience in response to changing markets.

Of significant importance, the San Joaquin Raptor court reviewed Fairview Neighbors, and was careful to emphasize that the Fairview Neighbors mine had actually achieved the peak capacity (810 truck trips) authorized by its conditional use permit.  As such, the Fairview Neighbors baseline, although set by a permit, nonetheless reflected actual peak mining activity at the site:

In Fairview Neighbors v. County of Ventura, the court allowed traffic numbers occurring when the mine operated at peak capacity pursuant to the prior CUP to be the “baseline,” since mine operations were widely variable depending on market factors. The peak capacity (over 810 truck trips) was actually achieved in years prior, so it was not a mere hypothetical situation. The court rejected the appellant’s claim that actual existing traffic numbers (at the time of the EIR) had to be used.  [Citation omitted.] Thus, in the situation of an existing mine operation, a description of baseline environmental setting may reasonably include the mine’s established levels of permitted use.

(San Joaquin Raptor, 149 Cal.App.4th at 673.)

Most recently, the California Supreme Court revisited the concept of project “baseline” in Communities for a Better Environment v. South Coast Air Quality Management District, et al. (2010) 48 Cal.4th 310 (“Communities for a Better Environment”).  In Communities for a Better Environment, ConocoPhillips proposed to modify and expand its operations at an existing Los Angeles refinery facility.  The lead agency used the facility’s maximum permitted emissions levels to establish the baseline for purposes of its CEQA analysis.  The California Supreme Court held that the lead agency’s baseline determination was improper; rather, the baseline for an existing facility must be representative of its actual operations (acknowledging latitude where operations fluctuate).

APPLICATION OF CEQA BASELINE

 

Let’s apply this analysis to our mining scenarios above.  In those scenarios, we assume the following:

The mining project needs an EIR for its project;

The proposed project either expands an existing operation or will entitle a new extraction source to supply an existing and permitted processing plant; and

The proposed project is utilizing the same form of transportation as the existing project.

First, the lead agency should determine the “baseline” for its CEQA analysis by using actual production based on a representative sample of years (e.g., ten years). This would give an accurate measurement of the range of actual existing conditions and would be consistent with applicable case law on the issue discussed above.  In the case of an existing extraction operation, this would be the level of extraction that has actually occurred under the existing mining permit.  For a project utilizing an existing permitted processing plant, for example, the traffic demand would be based on the average actual production of the processing plant over the chosen sample years (e.g., ten years).

Second, the lead agency should then compare the proposed project against this baseline in the project analysis, which constitutes the heart of the EIR analysis.  Applied correctly, the project level impacts are often negligible as typical existing activities are accounted for in the existing baseline and there is no immediate increase over the existing baseline in either variation of the scenario set forth above.[1]

The lead agency, however, must analyze the effective extension of production – either by way of a new source or the expansion of an existing source – when it performs its cumulative analysis under CEQA. This makes sense given that while the proposed project will not increase the actual amount of aggregate produced today (compared to the baseline), it will extend production of aggregate for a longer period of time into the future.

CONCLUSION

 

When a proposed mining project either (1) extends the term of an approved operation, or (2) entitles a new extraction source that utilizes a nearby – and already permitted – processing facility, the lead agency should measure the proposed production against the current actual production in the “baseline” analysis, and should account for any potential environmental impacts due to the extended production life of the project in the EIR’s cumulative analysis.

 


[1] Depending on proximity, there can be additional impacts related to haul distance and other factors.

 

by Jeffrey K. Dorso, Esq.

 

Jeffrey K. Dorso advises private and public clients in all aspects of project permitting and entitlements, and regulatory compliance, particularly regarding environmental review under CEQA and NEPA, state and federal mining law, land use and zoning issues, air quality regulation, state and federal endangered species laws, wetlands permitting, and other regulatory requirements.

 

(916) 496-8500

jeffrey@pioneerlawgroup.net

 

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