D'Arrigo Project Needs CEQA Review
February 16, 2004
Luis Osorio, Senior Planner
RE: Revised Mitigated Negative Declaration and Revised Initial Study, Proposed D'Arrigo Brothers Agricultural Processing Facility (PLN020069)
Dear Luis A. Osorio:
LandWatch Monterey County has had an opportunity to review the Notice of Intent to Adopt a Revised Mitigated Negative Declaration for the above noted project, along with the Revised Initial Study. This letter is to object to the issuance of a Mitigated Negative Declaration for the proposed project.
The California Environmental Quality Act (CEQA) clearly requires the County to prepare a full Environmental Impact Report (EIR) for the proposed agricultural processing facility and office building. As you know, CEQA requires a full EIR prior to making any decision that might have a significant negative impact on the environment. The purpose of CEQA is to provide full information to the decision makers prior to their decision'and also to let the public fully participate in the environmental review and analysis. Trying to use a Mitigated Negative Declaration to 'shortcut' the full EIR procedures mandated by CEQA eliminates the right of the public to comment on a full analysis'and then to have its comments responded to'prior to a decision on the project.
LandWatch was delighted that the Planning Commission refused to approve the proposed project based on the earlier Mitigated Negative Declaration. We were distressed, however, that the County did not then, immediately, proceed to the preparation of a full EIR, which the law so clearly requires. We sympathize with the applicant's desire to 'expedite' the processing of its permit application. However, trying to 'shortcut' a legally required step only causes more delay. We urge the County immediately to prepare a full EIR. As this letter abundantly demonstrates, CEQA clearly requires that this be done.
The proposed project would result in the construction of a 219,000 square foot agricultural processing facility, with a separate 35,000 square foot office building. This is not a 'small' project. The proposed project would be located on thirty-four acres of commercially productive agricultural land specially designated as 'Farmland Security Zone' land, intended to preserve it for agricultural 'production.' The displacement of agricultural production that would be caused by this proposed project is not an insignificant impact. Further, the proposed processing facility would use hazardous chemicals, and would generate over 900 heavy truck trips a day in and around the historic town of Spreckels. All of these facts make absolutely clear that this is not the type of project for which a Negative Declaration is appropriate. Clearly, the proposed project might have an adverse environmental impact. That triggers an EIR requirement. Furthermore, the discussion, conclusions, and mitigations contained in the Revised Initial Study repeatedly fail to address the impacts of this project.
CALIFORNIA ENVIRONMENTAL REVIEW REQUIREMENTS
State Public Resources Code Section 21082.2 is the provision of state law that determines when an Environmental Impact Report must be prepared. It states:
(a) The lead agency shall determine whether a project may have a significant effect on the environment based on substantial evidence in light of the whole record.
(d) If there is [any] substantial evidence, in light of the whole record before the lead agency, that a project may have a significant effect on the environment, an environmental impact report shall be prepared. (Emphasis and brackets added.)
The courts have been very clear that if a proposed project 'may' have a significant impact on the environment, a full EIR must be prepared. State law is also clear that 'substantial evidence' means 'any' substantial evidence.
Despite this, at the Planning Commission hearing on December 10, 2003, Commissioners and the public (as well as County staff) heard repeated reference to different sections of this Code:
(b) The existence of public controversy over the environmental effects of a project shall not require preparation of an environmental impact report if there is no substantial evidence in light of the whole record before the lead agency that the project may have a significant effect on the environment.
(c) Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous, or evidence of social or economic impacts which do not contribute to, or are not caused by, physical impacts on the environment, is not substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.
At that time, project advocates claimed that there was no substantial evidence presented to date. By implication, all arguments presented in favor of an EIR must have been 'speculation,' 'unsubstantiated opinion or narrative,' or the like. The County of Monterey necessarily claims the same thing, on Page 10 of the Revised Initial Study. By continuing to urge that the project can be approved based on a Mitigated Negative Declaration, the County denies the existence of any substantial evidence.
This position is simply not credible. This letter provides a great deal of very substantial evidence indicating that the proposal may have a significant impact. What follows cannot be anything but substantial evidence'it is a documentation of 'facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts.'
As the County aptly summarized for the Planning Commission at its December 10, 2003 hearing, CEQA Guidelines Section 15064 states that 'If substantial evidence of significant impacts is presented, the Lead Agency must prepare an EIR, even though it may be presented with other substantial evidence that the project would not have significant impacts (emphasis added).'
The following pages comprise a body of substantial evidence. It has hereby been presented. The Lead Agency must now prepare an EIR.
This proposed project would create a potential hazard to the public (as well as to workers on-site) through reasonably foreseeable upset and accident conditions, involving the release of anhydrous ammonia into the environment.
Page 16 of the Revised Initial Study notes that the use, transport, and disposal of anhydrous ammonia (and other hazardous materials) at this facility would be subject to Chapters 6.5 and 6.95 of the California Health and Safety Code, and Titles 19 and 22 of the California Code of Regulations. The discussion points out that these Codes (and the safety measures/ training/ planning required by them) are designed to minimize the safety risks associated with using hazardous materials. While this is certainly true, it is inaccurate to say: 'Simply by following these codes, there will be no potential for significant impacts.' That is, in essence, the reasoning taken by both the Revised Initial Study and the letter from Snowden Engineering (dated 1/6/04).
In fact, there is a risk of hazardous materials release at these facilities'although we all hope and pray that these events are infrequent. File review at the Division of Environmental Health revealed ample evidence of ammonia release incidents in Monterey County agricultural cooling facilities. Attached to this letter (Attachment 1) are incident reports and letters documenting the spills'some of them involving hundreds of pounds of ammonia, and creating toxic clouds that moved off-site. A full EIR needs to evaluate the possible impacts with reference to the specific conditions that exist on and around the proposed site.
Conversations with Senior Hazardous Materials Specialist Bruce Welden indicate a frequency of occurrence in Monterey County as 'one ammonia release every two years or so' (see Attachment 2).
These releases can impact the public, as well as workers on-site and the environment. Ammonia is an acutely hazardous material that can cause respiratory damage, burns, and death even at low concentrations. Attached to this letter (Attachment 3) is an example of an anhydrous ammonia MSDS (Material Safety Data Sheet), which briefly outlines the dangers of this material. Nationwide, ammonia releases are responsible for on-site and off-site injuries and deaths every year. For examples, see Attachment 4.
Ammonia releases are not something to write off. Anhydrous ammonia is a highly toxic substance, and in the words of Salinas City Fire Department Hazardous Materials Captain Scott Tyler, 'Ammonia will kill you.' Consultation with Captain Tyler indicated that, although infrequent, ammonia releases are quite serious. County planning staff point to the relative infrequency of ammonia releases as evidence that they do not pose a significant impact, but the acutely toxic nature of these spills means that, as Tyler said, 'It only takes one.' (Attachment 5)
The dangers posed by the possible release of anhydrous ammonia were highlighted by the Watsonville Fire Department, when the Watsonville Planning Commission was deliberating a new building proposed for construction near ammonia-containing sites in 1988 (the Red Roof Inn project). A specific memorandum from Fire Chief Gary Smith opposed the development, for exactly these reasons'the potential for hazardous materials releases (Attachment 6). If the ammonia usage at cold-storage facilities were truly 'insignificant,' there would have been no reason for the Fire Chief to have written this letter.
In case the Fire Chief's word is not enough, the Environmental Impact Report for the Red Roof Inn project found hazardous materials to be a 'Significant Unavoidable Adverse Impact' (Attachment 7). This is as explicit as it gets: accidents can happen at these facilities, and this does constitute a significant impact.
Furthermore, the proposed D'Arrigo Brothers agricultural processing facility would be one of the largest around. The current D'Arrigo Brothers facility in Castroville keeps 25,600 pounds of anhydrous ammonia on-site (Attachment 8). When ranked against the roughly 62 other agricultural coolers in Monterey County, this current facility is among the top 10 holders of ammonia, on a pound-for-pound basis (see Attachment 9). The proposed new facility is more than double the size of the current one, and would certainly require more ammonia on-site. The potential for large-scale impact clearly increases with size.
It is clear that releases can occur, even if a cooler is following all safety codes and regulations. The risk increases when the facility fails to implement all safety measures. The letter from Snowden Engineering claims that '[D'Arrigo has] been honorable in their dealings with my company and to the best of my knowledge in their efforts to safely operate their ammonia refrigeration equipment.' File review of the D'Arrigo Brothers Castroville facility revealed evidence to the contrary. Within the first few pages of the correspondence section, a reviewer will be greeted with evidence of a recent ammonia release (10/1/01), and a memorandum on this subject from Senior Hazardous Materials Specialist Bruce Welden to Deputy District Attorney John Sarsfield (Attachment 10). The memo states, ''the ammonia release'could have been prevented if they done [sic] what they promised to in their Risk Management Plan (RMP).' Accidents happen even with good safety measures and complete code compliance; it only gets worse when the facility does not comply with all regulations. These same regulations'which we have seen violated at the old facility'are cited by County planning staff as evidence that accidents and negligence 'can't' happen.
The releases documented in the files at the Division of Environmental Health provide concrete examples of facilities that were operating under the requirements of the various safety Codes, but still experienced hazardous materials emergencies. These emergencies created both on-site and off-site impacts. In other words, there is a possible risk of hazardous materials release at these facilities. This is undeniable. Whether we interpret 'an accident every two years' as a lot or a little, it is still an accident every two years. The use and transport of hazardous materials at the proposed facility constitutes a significant unmitigated impact; and a full EIR is required to analyze the potential dangers, with reference to the specific site proposed for the facility.
· Attachment 1: Selections from the Division of Environmental Health files on the following facilities: D'Arrigo Brothers, Nunes Cooling, P&O Cold Logistics, J.M. Smucker Company.
· Attachment 2: Memorandum, RE: Hazardous Materials Evidence From Environmental Health Division, Relevant to D'Arrigo Spreckels Project Proposal.
· Attachment 3: Material Safety Data Sheet (MSDS) for Anhydrous Ammonia (Terra Industries, Inc.).
· Attachment 4: OSHA Memorandum for Regional Administrators, RE: Hazard Information Bulletin ' Chemical Exposures from Industrial Valve and Piping Systems.
· Attachment 5: Memorandum, RE: Hazardous Materials Evidence From Salinas City Fire Department, Relevant to D'Arrigo Spreckels Project Proposal.
· Attachment 6: Watsonville City Fire Chief Memorandum, RE: Heritage Development Motel, Lee Rd. and W. Beach St.
· Attachment 7: Selections from Ramada Inn Final Environmental Inn Report (October, 1988).
· Attachment 8: Division of Environmental Health, Official List: 'Facilities Which Handle Regulated Substances (or Acutely Hazardous Materials) In Quantities Greater Than Threshold Quantities (TPQ).'
· Attachment 9: List: 'Agricultural Cooling Facilities That Handle Ammonia'Sorted by Amount on Site.'
· Attachment 10: Monterey County Health Department, Division of Environmental Health Memorandum, RE: Ammonia Release, D'Arrigo Brothers, 10-1-01.
NOx (oxides of nitrogen) emissions generated by this project will apparently be greater than the Monterey Bay Unified Air Pollution Control District's threshold of significance.
The Revised Initial Study leaves blank the check-box next to 'Air Quality,' claiming that ''there is no potential for significant environmental impact to occur from either construction, operation or maintenance of the proposed project and no further discussion in the Environmental Checklist is necessary.' (Pages 4-5). As 'evidence,' the Revised Initial Study refers the reader to the original Denise Duffy and Associates Air Quality Analysis prepared for this project. However, the data contained in 'Exhibit D' is both irrelevant and outdated.
More than three months ago, Planning Staff received a letter from Monterey Bay Unified Air Pollution Control District (MBUAPCD) Supervising Planner Janet Brennan (Reference A). In her letter, Brennan noted the inadequacy of the original URBEMIS model for calculating emissions. In response, Jeff Foster of Denise Duffy and Associates submitted a new set of calculations for air quality emissions (Attachment 11). These calculations revealed NOx emissions to be more than 135 pounds per day'less than two pounds under the MBUAPCD's threshold of significance. This result was dramatically more than the original URBEMIS model's results, and lifted eyebrows at MBUAPCD.
Supervising Planner Brennan reviewed the newer calculations, and noted that 'It does not appear that NOx emissions associated with refrigeration units were calculated. These emissions, if applicable, should be calculated prior to determining the appropriate environmental document since the emission estimates submitted to the District for review are just two pounds below the District's threshold of significance.' (Reference B, emphasis added).
In response, Jeff Foster submitted a letter claiming that the refrigeration units do not emit NOx gases because they are 'closed systems' and do not use nitrogen-containing coolants (Attachment 12). Unfortunately, this wholly avoids the issue. The MBUAPCD's concern was with emissions from the generators powering the refrigeration units, not with leaks of refrigerant gas or the like. Thus, Foster's 'response' to the refrigeration units question lacked any substance at all.
All of this happened before the original December 10th, 2003 Planning Commission hearing, yet the public (and apparently also the Planning Commissioners) only saw the letters from MBUAPCD'seeming strangely out-of-context, because the new calculations and letters from Jeff Foster were absent (Reference C).
The Revised Mitigated Negative Declaration does not remedy this mistake, and continues to rely on the outdated URBEMIS numbers as 'evidence.' Thus, there appears to be no substantial evidence supporting staff's conclusion. The Revised Mitigated Negative Declaration simply contains an assertion of 'no impact.'
With the NOx emissions standing at 135+ lbs/day, and the MBUAPCD threshold of significance at 137 lbs/day, there is good reason to believe that the project will in fact exceed the threshold'even without refrigeration unit emissions. The calculation of 135 lbs/day was based on many assumptions, at least three of which are questionable and would cause a higher value if inaccurate:
The Revised Initial Study attempts to sidestep the issue of NOx emissions from the refrigeration units with the following language: ''conditions of approval are recommended to be complied with prior to the issuance of building permits, which require calculations for NOx (Nitrous Oxides) emissions from refrigeration units to assure full compliance with the District's adopted thresholds of significance'' (Page 5). This means that a 'study,' to determine the possible impacts, is urged as a 'mitigation' measure. CEQA does not permit that. The 'study' should come in the form of a full EIR, and any mitigation measures ultimately adopted must actually affect practices and activities that will make certain that air pollution impacts are avoided. Note that the November 24, 2003 MBUAPCD letter cited above makes this very point, stating that the necessary calculations should be performed prior to determining the appropriate environmental document! Also note that in a letter dated January 21, 2004, Supervising Planner Brennan submitted MBUAPCD staff estimates for the NOx emissions from the refrigeration units: 51 pounds per day (Attachment 15). This would bring the total NOx emissions to 186 lbs/day ' 49 lbs/day in excess of the District's threshold of significance.
It appears that the D'Arrigo project exceeds the MUBAPCD threshold of significance for NOx emissions. It is also clear that the Mitigated Negative Declaration is based on a number of 'assumptions' that are questionable. They are speculative, not 'facts,' and in these circumstances, CEQA requires that a full EIR be prepared.
· Reference A: Letter Submitted by MBUAPCD Supervising Planner Janet Brennan to Luis Osorio (10/31/03) RE: MND FOR D'ARRIGO BROTHERS PROJECT.
· Attachment 11: Letter Submitted by Jeff Foster to MBUAPCD Supervising Planner Janet Brennan (11/18/03) RE: D'Arrigo Bros. Co. Cooler Project'Initial Study Comment Letter Requested Information. Includes new calculations of emissions.
· Reference B: Letter Submitted by MBUAPCD Supervising Planner Janet Brennan to Luis Osorio (11/24/03) RE: MND FOR D'ARRIGO BROTHERS PROJECT.
· Attachment 12: Letter Submitted by Jeff Foster to Luis Osorio (12/9/03) RE: D'Arrigo Bros. Co. Cooler Project (PLN 020069)'Response to 11/24 MBUAPCD Letter.
· Reference C: Staff Report for Monterey County Planning Commission: December 10, 2003 Agenda Item 12.
· Reference D: Higgins Associates 'Traffic Impact and Pavement Analysis Report for the proposed Cooler Facility off Harris Road, Monterey County, California.' Exhibit 6 (B).
· Attachment 13: Memorandum, RE: Attempts to Verify Claims from Higgins Traffic Report, Relevant to D'Arrigo Spreckels Project Proposal.
· Attachment 14: Memorandum, RE: Line Truck Behavior, Relevant to D'Arrigo Spreckels Project Proposal.
· Attachment 15: Letter Submitted by MBUAPCD Supervising Planner Janet Brennan to Luis Osorio (1/21/04) RE: REVISED MND FOR D'ARRIGO BROTHERS PROJECT.
Increased traffic through the Town of Spreckels will impact the community, despite the proposed mitigation measures.
Page 24 of the Revised Initial Study states:
It is important to point out that both Hatton Avenue/Harkins Road and the Harris Road/Hatton Avenue intersection provide the main access to the Town of Spreckels (designated as a historic resource), and that any additional car or truck traffic through could result in significant impacts to the residents and the street infrastructure of the Town (emphasis added).
Exhibit 6A of the Higgins Traffic Report (Reference E) indicates that 20% of employee trips will cross the Harris Road/Hatton Avenue intersection.
It seems that by County staff's own admission, there is potential for a significant traffic impact, and this impact is unmitigated. CEQA only requires that a project 'may' have an unmitigated impact, in order to mandate an EIR. Thus, an EIR is required.
More evidence confirms the need for an EIR:
Conclusion #1, on Page 26 of the Revised Initial Study, is crystal-clear and more limited in scope:
Any additional vehicular traffic, including truck traffic, from the proposed facility through the Town of Spreckels, would result in potentially significant impacts on the Town's historic designation, its character and its residents (emphasis added).
These are no uncertain terms:
(any additional traffic through town) = (potentially significant impact)
Recall that CEQA states:
(unmitigated, potentially significant impact) = (EIR required)
And note that no mitigations are proposed for any vehicles that might somehow escape the 'ban' on driving through Spreckels. Thus:
(any additional traffic through town) = (EIR required)
The Revised Initial Study notes on page 25 that 905 average daily trips would be generated by this project. In terms of route access for the vast majority of these trips (coming from the North/Northeast), Abbott Street/Harris Road is slightly more direct than Hatton Avenue/Harkins Road. However, even small delays on Abbott Street/Harris Road make Hatton Avenue/Harkins Road an attractive alternative.
Deputy City Engineer Robert Russell writes (see Reference F), 'An item not included in the traffic analysis is truck/traffic queues on the Harris Road leg of the Abbott-Harris intersection.' Russell goes on to comment about the ''high truck traffic use at [the Abbott-Harris] intersection, slow truck movements, and increased truck traffic at this intersection resulting from this development'' Further delays may be caused by left-turn backups going into the facility from Harris Road, as 18-wheel truck/trailers are slow to make turns across traffic. Thus, there is some incentive for drivers to take Hatton Avenue/Harkins Road.
Recognizing this incentive, County planning staff has suggested Mitigation Measure 15.1 designed to keep trucks off Hatton Avenue/Harkins Road. The substance of this measure consists of (1) increasing the size of existing signs along Hatton Avenue, and (2) 'in-house' signs placed in the truckers' lounge and other locations (see Revised Initial Study, Page 26).
In order to evaluate the effectiveness of this mitigation measure, we turn to the current situation in the Town of Spreckels.
Presently, there is a law against heavy-duty trucks (over 7 tons) on Hatton Avenue. There are no fewer than six signs advertising this fact, along Hatton Avenue/Harkins Road (Attachment 16). However, industry-servicing trucks still go through the Town. Interviews with local residents and California Highway Patrol Commercial Vehicles Officer Steve Cooper confirm that truck traffic through Hatton Avenue/Harkins Road is common (Attachment 17 and Attachment 18). Estimates range from 3-4 trucks/day to 12 or more trucks/day in the harvest-season. If caught, these drivers are issued tickets, but if local residents' estimates are correct, the majority are not caught. Residents are unhappy with the situation, and complain of safety hazards (Attachment 17). They often call the California Highway Patrol to request enforcement on trucks violating the ban. Officer Cooper verified this, saying, 'We get lots of calls' (Attachment 18). Officer Cooper indicated that most truckers that violate the 'no-trucks' law on Hatton Avenue are out-of-state drivers, often lost or unsure of their directions. And some drivers simply ignore it, according to Cooper (Attachment 18). While they may be advised of current recommended routes around Hatton Avenue/Harkins Road, line truck drivers are not accountable to the factory that they service, and have no significant incentive to follow 'house rules' (see comments cited in the email in Attachment 14). In conjunction with this, some drivers appear to exhibit a disregard for the traffic laws. In sum, even with a 'no-trucks' law on Hatton Avenue, and six signs posted, some drivers still choose to drive on Hatton Avenue/Harkins Road. This means that a significant traffic impact from the proposed factory and office building is likely.
As for the mitigations offered in Measure 15.1:
(1) Increased-size signs along Hatton Ave/Harkins Road.
There are currently six signs along Hatton Avenue/Harkins Road, of varying sizes. All are visible and obvious (Attachment 16). Increasing the size of these signs would be relevant if the signs were obscure, small, hard-to-see, and few in numbers. However, this is not the case. All signs are out in the open, and legible from the road. This proposed mitigation measure does not address the problem, which is that with increased truck traffic in the vicinity, there is likely to be increased impact on Spreckels. The signs already exist!
(2) In-house signage in the truckers' lounge and other locations.
This proposed mitigation is the same as that which already exists in the Spreckels area, except it is weaker: it is an 'in-house' rule, not a law. The fact that trucks currently violate the law'the stronger of the two regulations'proves that the proposed mitigation measure will be ineffective. It is not credible to claim the D'Arrigo-servicing trucks will behave any differently than the current trucks.
Thus, by creating over 900 new trips per day, and failing to change the current flaws, the D'Arrigo project will inevitably result in more of the same'more out-of-state, lost, and/or negligent drivers, who will drive through the Town in spite of the regulations.
The proposed project will result in increased traffic on Hatton Avenue/Harkins Road, and this represents a significant unmitigated impact. Recall the formula from above:
(any additional traffic through town) = (EIR needed)
A full EIR is clearly mandated by California State Law.
· Reference E: Higgins Associates 'Traffic Impact and Pavement Analysis Report for the proposed Cooler Facility off Harris Road, Monterey County, California.' Exhibit 6 (A).
· Reference F: Letter Submitted by City of Salinas Deputy City Engineer Robert Russell to Luis Osorio (11/22/03) RE: D'ARRIGO BROTHERS AGRICULTURAL SUPPORT FACILITY NOTICE OF INTENT TO ADOPT A MITIGATED NEGATIVE DECLARATION.
· Attachment 16: Six photographs, documenting the current signage along Hatton Avenue/Harkins Road.
· Attachment 17: Memorandum, RE: Current Truck Traffic on Hatton Avenue, Relevant to D'Arrigo Spreckels Project Proposal.
· Attachment 18: Memorandum, RE: Truck Traffic Enforcement in Spreckels, Relevant to D'Arrigo Spreckels Project Proposal.
The impact of this project on agricultural resources will be twofold:
(1) Permitting the construction of a processing plant/office-building complex on Prime Farmland represents both an immediate and cumulative loss of agricultural land.
(2) The proposed project directly conflicts with an existing Williamson Act (Farmland Security Zone) contract.
(1) Page 10 of the Revised Initial Study asks, 'Would the project'Convert Prime Farmland'to non-agricultural use?' Planning Staff claim that the answer is no. They justify this answer by asserting that ''development of the facility would not result in the conversion of the land to non-agricultural uses as the facility is integral to agricultural production.' (Page 10)
This 'logic' is a stretch. First, it takes 'agricultural use' to be a hugely broad, catch-all term that applies, in this case, to anything owned or operated by D'Arrigo Brothers. To County staff, the fact that something is part of an ag corporation means that it is 'agricultural use.' This is untenable, particularly when one considers the proposed office building. The 'agricultural use' clause was intended to help farmers with equipment sheds, seed lots, and the like'not to allow factories or office buildings to be constructed on Prime Farmland.
The inappropriate nature of the claim that the proposed office building is an 'agricultural use' is further exposed when more details are added: around 8,000 square feet of the proposed office building would be a dedicated 'Sales' office (Attachment 19). 'Sales' is not 'agricultural use,' even if it is for an ag corporation. If 'Sales' were to be an 'agricultural use,' simply because D'Arrigo is an ag corporation, then so would a D'Arrigo marketing office (if the two are in fact distinct). If they were to feel so inclined, a D'Arrigo trade showroom and convention center could qualify. A D'Arrigo merchandising factory could be built on Prime Farmland. A dedicated plant for printing D'Arrigo T-shirts would be yet another 'agricultural use.' These examples are of course both extreme and hypothetical, but they illustrate the distinction between an ag corporation and 'agricultural use.' Not everything John D'Arrigo puts his hands on turns to 'agricultural use.' Certainly not a 35,000 square-foot office building containing a dedicated 'Sales' office.
The particular language used in the Revised Initial Study makes the issue clearer. On Page 10, staff claims that the factory/office complex will be 'integral to production.' In fact, this is not the case for all elements of the project, but the language of 'production' brings the meaning closer to the original intent of the laws. The 'agricultural uses' originally allowed by these laws were things like tool yards and fueling stations'things directly related to production, or in the words of County staff, 'integral to agricultural production.'
Not everything associated with agribusiness is in fact 'integral to agricultural production.' 'Sales,' in particular, can only occur after 'agricultural production' is completed. Another way to look at the problem is to note that if a project were truly 'integral to agricultural production' it would be useless anywhere but on farmland. For example, a fueling station in the middle of town defeats the purpose of a fueling station. A tool shed miles away is pointless. The phrase 'agricultural use' refers to projects like these, which must be constructed on-site. Hence, a good test of whether something is 'integral to production,' and therefore a real 'agricultural use,' is whether it could exist anywhere else. Currently, all of the elements of the proposed D'Arrigo project (cooler, office building, etc.) do exist in other locations'locations designated for development. The current D'Arrigo cooler is located in Castroville; the current D'Arrigo offices are located in Salinas, etc. Clearly, a processing plant/office building complex need not be built on Prime Farmland. Even if an office building were 'important,' or 'helpful' to agricultural production, it could go ahead and be 'helpful' from a different location'from within city limits. Simply being a part of an ag corporation does not justify building new factories and office buildings on Prime Farmland.
All of the above shows quite plainly that (at the very least) an office building is in no way 'integral to agricultural production,' or an acceptable 'agricultural use.' Because one or more elements of this project are 'non-agricultural uses,' this project will have an impact on agricultural resources. It will impact the immediate land upon which the facility is built, as 34 acres of Prime Farmland will be removed from production.
The County, in addressing the loss of land, essentially claims that 'thirty-four acres isn't much.' (See Page 11, Revised Initial Study). This is absolutely inadequate. The same reasoning would apply to every other thirty-four acres of land proposed for factory or office development, and the cumulative impacts would be considerable: thousands of acres of Monterey County's best lands removed from production.
Specifically, there were 764,313 acres of contracted lands in Monterey County in 2003, of which 29,177 acres are under Farmland Security Zone (FSZ) contracts (Attachment 20). Of these, 15,940 acres are technically identical to the lands for this project: 'Non-Urban Prime Lands,' under FSZ contracts (also Attachment 20).
The purpose of these Farmland Security Zone contracts is to preserve the contracted land in actual agricultural production. In exchange for a commitment to keep the land in production, the property owner is given tax breaks. Because FSZ lands have the narrowest band of acceptable uses, a use that is approved for FSZ lands will likely be approved for all other Williamson Act contracted lands as well. This means the decision proposed in this case is not simply for this particular parcel, and not even for all FSZ contracted lands, but potentially for all 764,313 Williamson Act contracted acres in Monterey County. For a map of the lands impacted, see Attachment 21. The scale is immense.
The essence of 'cumulative' impacts is the idea of taking the project in question, and extending it to all possible similar circumstances. This exposes vast tracts of protected land in the County to this type of development, contrary to the General Plan and Williamson Act contracts. To the extent that there is demand, up to 15,940 of the most protected acres in Monterey County could be filled with factories and office buildings, removing them from production. There is only one possible conclusion: this project could have significant cumulative impacts. Because it could, a full EIR is required.
(2) The Revised Initial Study claims on Page 10 that there is no 'potentially significant impact' with respect to a 'conflict with ' a Williamson Act contract.' It proceeds to note that the building site properties are under Farmland Security Zone (FSZ) contracts (a type of Williamson Act contract).
FSZ contracts #00-011 and #00-012 state: '' [the properties] shall not be used by Owner'for any purpose other than the production of food and fiber for commercial purposes and uses compatible thereto' (Attachment 22. Emphasis added).
Compatible uses are listed in Exhibit B to FSZ Contracts #00-011 and #00-012; County staff rely on 'Compatible Use' number one: 'The drying, packing or other processing of an agricultural commodity usually performed on the premises where it is produced'' (Emphasis added).
In fact, this does not accurately describe the specific use, nor the range of uses proposed in the D'Arrigo Brothers processing plant/office complex.
Specific Use: The proposed D'Arrigo factory is intended to process materials from all over the Salinas Valley. This is stated clearly in the Revised Initial Study, on Page 2: 'The facility would be used for the processing of agricultural produce grown and harvested by the applicant on the subject property and other properties also owned and/or leased by the applicant throughout the Salinas Valley.' This proposal is not for processing materials produced on the premises where production occurs. The current D'Arrigo processing plant, which the proposed facility would replace, is located in a designated industrial area in Castroville. No crops are grown in the Castroville industrial area.
In terms of the actual processing, this is not a set of actions 'usually performed on the premises where the commodity is produced.' The commodity is shipped off the premises before processing occurs. In other words, the actions performed in the factory are never done on-site in the fields.
No matter whether one looks at the system in terms of actions or locations, it is obvious that the processing performed at the proposed D'Arrigo factory is not covered under the phrase ''performed on the premises where it is produced'' So what is left? The word 'usually.' One might emphasize this word to create the possibility for a less-used alternative (e.g. 'it's usually done this way, but sometimes it's done that way'). However, in order for this to apply, there must a demonstrable 'usual' trend to which the proposed D'Arrigo plant is an exception. This 'norm' or 'usual' does not exist: the processing performed at the proposed D'Arrigo plant is not ever performed on the premises where the commodity is produced: all major ag corporations in Monterey County ship to a centralized location; none do this processing on-site. It does not work to claim that every observed instance is an exception'to a non-existent norm. In no way can 'usually' be construed to allow the construction of this factory/office complex on FSZ contracted lands.
Range of Uses: FSZ Contracts #00-011 and #00-012 are quite clear that any activities other than crop production and a handful of compatible uses are not allowed on the contracted properties (Attachment 22). This is an exclusive requirement: there is no room for incompatible uses, even if there are also compatible uses happening at the same time. Because of this, even if the cooler operations were deemed to be compatible, the other activities that will happen on-site (many of which are flagrantly disallowed) are enough to make the project incompatible with the FSZ contracts.
This project calls for a 35,000 square-foot office building, an employees' fitness room, an unexplained 'battery room,' a large parking lot, and a truckers' lounge, among other things. The activities that take place in these locations do not fall under the list of 'Compatible Uses' listed in Exhibit 'B.' Not even close. This means that even if the cooler operation were deemed compatible under 'Compatible Use' #1, the project would still conflict with the FSZ contracts protecting the land.
To anyone who takes more than a casual interest in the matter, it is easy to see that the proposed D'Arrigo project is incompatible with the terms of the FSZ contracts. The County is stretching to claim that it is compatible, and this is not a good idea. The Monterey County Planning and Building Inspection Department's Williamson Act Specialist, Associate Planner David Lutes, expressed discomfort with the D'Arrigo project and its Williamson Act consistency (or lack thereof) (Attachment 23). Former Williamson Act administrator for Butte County William Farrel agreed, expressing dismay at the proposed factory on contracted lands (Attachment 24). Even the California State Department of Conservation, the highest Williamson Act advisor, has failed to give a determination of consistency for this project.
Such blatant incompatibility is poor policy for Monterey County. Periodically, the State Department of Conservation conducts audits of the Counties' Williamson Act administration. Violations are subject to prosecution by the State Attorney General. Approving the D'Arrigo case puts the County at risk unnecessarily.
(1) The proposed project contains at least one 'non-agricultural use,' and therefore represents a loss of acreage from agricultural production. This will be a significant impact, and a full EIR is required to address this issue. Furthermore, cumulative loss of land will be a distinct and significant impact. This also mandates an EIR.
(2) The proposed project is in conflict with existing Farmland Security Zone Contracts #00-011 and #00-012. This conflict is both an impact requiring a full EIR, and an independent reason to deny the project.
· Attachment 19: PowerPoint Presentation from D'Arrigo Representative at 12/10/03 Planning Commission Hearing (Page 2).
· Attachment 20: Source: Williamson Act Status Report 2004 (Updated Numbers).
· Attachment 21: Map from the California State Department of Conservation, Division of Land Resource Protection: 'Monterey County Williamson Act Lands 2003.'
· Attachment 22: Farmland Security Zone Contract (D'Arrigo Bros 00-011) and Farmland Security Zone Contract (D'Arrigo Bros 00-012), Full Text.
· Attachment 23: Memorandum, RE: Further Evidence Indicating Proposed D'Arrigo Spreckels Project Is Inconsistent With Farmland Security Zone Contracts.
· Attachment 24 Memorandum, RE: Evidence Indicating That Proposed D'Arrigo Spreckels Project Is Inconsistent With Farmland Security Zone Contracts.
CEQA requires the identification and evaluation of alternative sites. Part of the Environmental Review process is comparing the proposed project site to its alternatives. However, the Revised Initial Study fails to mention any alternate sites. Indeed, D'Arrigo representatives have repeatedly claimed that there are no available alternate sites (Attachment 25). In fact, alternatives do exist.
Attachment 26 is a brief summary of a few possible alternate sites in Soledad and Gonzales. Certainly more possibilities exist in other locations'in the City of Salinas, in Greenfield, in King City, and in the Pajaro or Castroville areas, among other locations. Some alternatives may be better than others, and after analysis, some sites may be deemed unsuitable for this project. However, the issue is not which particular site offers the best advantages'it is the process of publicly exploring and discussing the options. That is what CEQA mandates. The fact that even a few possible alternative sites can be listed and discussed is enough to prove that there needs to be a discussion.
Furthermore, the criteria for site selection must come from impact evaluation, not just convenience to D'Arrigo Brothers. Impacts like traffic, air quality, and agricultural resources could be significantly reduced at other sites. For example, over 90% of D'Arrigo farmlands lie to the South of Salinas. Thus, a location in Gonzales, Soledad, Greenfield, or King City would shorten field truck trips significantly (Reference G). A site within city limits would also not conflict with a Williamson Act contract, or require paving over thirty-four acres of commercially productive agricultural land.
A discussion of alternatives might conclude that the proposed Spreckels site is the best option (though that seems doubtful, frankly). Even if did turn out to be true that the Spreckels site is the best, CEQA mandates that this choice be made in an informed and public manner. It is absolutely inadequate to rely on the invested party's unsupported determination of 'no alternates available.' The County of Monterey has the responsibility to research and document all possible alternatives, not simply to nod in consent when the D'Arrigo Brothers lawyers shut down discussion on the subject. A full discussion of other options is part of an EIR, and is required by law.
· Attachment 25: PowerPoint Presentation from D'Arrigo Representative at 12/10/03 Planning Commission Hearing (Page 1).
· Attachment 26: Possible Alternative Site Information Sheets and Photos.
· Reference G: Letter Submitted by Jeff Foster to Luis Osorio (11/19/03) RE: D'Arrigo Bros. Co. Cooler Project (PLN020069)'Comment Letter on Initial Study. See Point #6.
This project is located just outside the Town of Spreckels. A 34-acre project will certainly be visible and prominent from Town, and in the panorama of the Spreckels area. This project will also increase traffic in the Spreckels area, possibly including trucks through Town. As a precedent, this project will also encourage incremental encroachment on the Town.
The Town of Spreckels is a Designated Historic District. Local historical expert Mark Norris has expressed concern about the possible effects of this project on the Town of Spreckels (Attachment 27).
CEQA Guidelines Section 15064.5 (b) states, 'A project with an effect that may cause a substantial adverse change in the significance of an historical resource is a project that may have a significant effect on the environment.'
This project may have a significant adverse impact on the historic nature of the Town of Spreckels. Nowhere in the Revised Initial Study is this addressed. A full EIR is required. Furthermore, review by the Historical Resources Review Board is certainly warranted.
The 'Land Use/Planning' check box on Page 4 of the Revised Initial Study indicates 'no potentially significant impact.' However, as discussed above, this project contains a 'stand alone' office building, and for that reason among many others, does not constitute an acceptable 'agricultural use' of land. The County's land use plan indicates that this area is to be used for growing crops. Factories related to agricultural use are located in areas like Pajaro and Castroville (where the current D'Arrigo facility is located), as well as in Salinas Valley cities.
This is a precedent-setting application. The cumulative impact of allowing large-scale agricultural processing facilities and office buildings on commercially productive agricultural land is an important land use and planning issue, and demands analysis in a full EIR.
Past Environmental Impact Reports:
LandWatch staff made consistent and concerted efforts to review the EIR for the 1986 Tanimura and Antle (T&A) agricultural processing plant located outside the Town of Spreckels. County Planning staff failed to produce a copy of this document, despite more-than-adequate time and notice, and repeated requests. The 1986 T&A facility is in some ways an analogue to the current project proposal; this is acknowledged on Page 3 of the Revised Initial Study.
The T&A facility was proposed for zoned ag/industrial land, not F/40 Prime Farmland under FSZ contracts. Nearly all elements of the T&A project were smaller than the current D'Arrigo project (Attachment 28). Given these mitigating factors, County planners still conducted a full EIR. If the T&A facility merited a full EIR, then the D'Arrigo proposal certainly does.
The Initial Study checklist for the T&A project (Attachment 29) lists all of the following as potential environmental impacts: 'seismic hazard,' 'geologic instability,' 'potential to degrade groundwater,' 'visual impact,' 'unacceptable noise,' 'traffic impact,' and 'air quality degradation.' Because this similar situation listed all of these impacts, it is less than credible to claim that the D'Arrigo project will have no potential impacts. The State Clearinghouse Data Base records for the 1986 T&A project (Attachment 30) confirm the findings of the Initial Study. The Data Base lists as 'Project Issues' all of the following:
Archaeologic-Historic; Air Quality; Agricultural Land; Aesthetic/Visual; Economics/Jobs; Forest Land/Fire Hazard; Flood Plain/Flooding; Geologic/Seismic; Job Generation; Noise; Public Services; Schools/Universities; Sewer Capacity; Soil Erosion/Compaction/Grading; Solid Waste; Toxic/Hazardous; Traffic/Circulation; Vegetation; Water Supply; Wetland/Riparian; Growth Inducing; Cumulative Effects.
Although not every issue here is applicable to the D'Arrigo project, certainly most of them are. With all these issues found to be significant in the T&A EIR, there is ample evidence to suggest that the D'Arrigo project will have similar impacts. Were the actual EIR to be made available, certainly some specific examples of analogous situations could be found.
General Plan Update:
On Page 113, the 21st Century Monterey County General Plan lists Harris Road's 'Existing Peak LOS (traffic Level of Service)' as 'C' (Attachment 31). This indicates the peak PM commuter hour LOS. However, the Higgins Associates Traffic Impact and Pavement Analysis Report for the D'Arrigo Brothers project (and the project's Revised Initial Study) refer to the peak PM LOS for Harris Road as 'B.'
What in fact is the peak PM LOS for Harris Road? The General Plan Update process started years ago; most of the information used within this document has been around for some time. Consultants and County staff for the D'Arrigo project should have had adequate time to inquire about the most up-to-date statistics on Harris Road's LOS and traffic counts.
With this key piece of information in question, the traffic impacts of the D'Arrigo project cannot be conclusively established. A full EIR would involve clarifying the discrepancy and the actually LOS for Harris Road, and proceeding from that information to a complete analysis of traffic impacts. This is clearly needed.
In addition to casting immediate uncertainty on the Higgins Report, the new General Plan Update indicates a possible deterioration of Harris Road's LOS. On Page 113, the 'Projected Peak LOS Without Local Improvements' of Harris Road is 'D.' Given that the County's threshold of significance for traffic impacts is LOS 'D,' to what extent will the D'Arrigo project contribute to this deterioration of Harris Road's LOS? The new General Plan seems to indicate that the cumulative impact of the D'Arrigo project and other similar projects will eventually be significant. This issue is inadequately addressed in the Revised Initial Study, and demands a full EIR.
Page 7 of the Revised Initial Study outlines (in Section V.) how the County is supposed to evaluate potential environmental impacts. Among other things, the County must ''take into account the whole action involved, including offsite as well as onsite, cumulative as well as project-level, indirect as well as direct, and construction as well as operational impacts.' The Revised Initial Study and the analysis that is supposed to support the proposed Mitigated Negative Declaration consistently fail this test.
As also noted on Page 7 (in Section V.), when the use of a Mitigated Negative Declaration is proposed, CEQA requires the County to ''describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level.' The documents circulated for public comment do not include an actual Mitigated Negative Declaration, and only one section out of sixteen (Traffic) in the Revised Initial Study contains actual concrete mitigation measures. In the other fifteen sections, mitigation may be rolled together with discussion and conclusions; it is unclear. Without explicit mitigation measures and the actual Mitigated Negative Declaration, the public is not fully informed. Once again, more information is needed. A full EIR would contain all of this information, and make it readily accessible.
The Environmental Checklist says, on Page 9, that there are no 'potentially significant impacts' with respects to the aesthetics of the proposed project. This is simply not true. While the subject property may not be located within a designated visually sensitive area, CEQA requires that the County independently analyze the possible aesthetic impact of the proposal. Putting a factory into an area largely devoted to field agriculture, and that is nearby the scenic and historic town of Spreckels, may have a significant negative impact on the aesthetics of the area. There must be a real analysis of what the visual and aesthetic impacts of a huge new industrial facility (and a parking lot) will have in this area.
Hydrology and Water Quality:
The Environmental Checklist section on 'Hydrology and Water Quality' follows the pattern of claiming no potentially significant impacts. Yet, the potential for adverse water quality impacts is obvious even to a layperson. Water will be provided by agricultural wells on site. Wastewater, in large amounts, will be sent back to the very same aquifer. What analysis convinces the County that this isn't going to be a problem for long term water quality? Materials in the project file indicate that the County Health Department has done percolation testing on the property, and found a number of areas that are not adequate or suitable. Again, an analysis of the issues is required. The Initial Study notes a possible alleviation of current groundwater extractions, but does not analyze water quality impacts at all. In order to comply with CEQA, a full EIR is required.
The discussion of possible 'Noise' impacts in the Revised Initial Study remains woefully inadequate. First, the County claims on Page 20 that there will be only a 'slight' increase in traffic volumes. Yet, if the project were approved, over nine hundred large trucks a day would begin driving into and out of the factory, along roads adjacent to (and in) the historic Town of Spreckels, and into the City of Salinas. What analysis indicates that the truck and factory noises are not even 'potentially' significant? None. What 'mitigations' are proposed? No specific mitigations are included. CEQA demands better, and an EIR undertaking the required analysis should be prepared.
Errors, Inaccuracies, Etc.:
The Revised Initial Study contains various errors and inaccuracies. On Page 10, section a) states ''would result in the removal of 27 acres'' The correct amount is 34 acres. On Page 11, under Point 1, the Revised Initial Study claims that 34 acres is ''slightly over 1% of the owner's total farming area'' In fact, 34 acres is much less than 1%. The next paragraph maintains that 'Development of the proposed facility would result in the displacement of less than 1% of the owner's land under the Farmland Security Zone Contracts (2,312 acres).' Once again, 34 acres is more than 1% of 2,312. While not substantial problems per se, these instances demonstrate the cursory nature of the current environmental document. A full EIR would demand more care and accuracy, and provide better information for public discourse.
If the County expects the public to understand and comment on its environmental documents, key documents should be not only referenced, but included as attachments. It does the average reader no good to simply list 'References' at the end of the Revised Initial Study, especially if some are new and crucial to the arguments made in the Revised Initial Study. It is not the public's duty to constantly pester the County for relevant documents; these should be included with the circulated materials. The letter from Snowden Engineering, for example, was not included as an attachment. Nor were crucial new letters from MBUAPCD, whereas an outdated Air Quality Analysis was included. Again, this lack of information would be remedied by a full EIR.
· Attachment 27: Memorandum, RE: Expert Opinion on Proposed D'Arrigo Project's Impact On The Historical Nature Of The Town of Spreckels.
· Attachment 28: Project Description from 1986 Tanimura and Antle Agricultural Processing Plant Project.
· Attachment 29: Environmental Recommendation and Initial Study from 1986 Tanimura and Antle Agricultural Processing Plant Project.
· Attachment 30: Document Details Report, State Clearinghouse Data Base. Information on EIR performed for 1986 Tanimura and Antle Agricultural Processing Plant Project.
· Attachment 31: 21st Century Monterey County General Plan: Title Page and Page 113.
LandWatch works on land use policy issues, and we do everything we can to insist that local governmental agencies follow the environmental review requirements of state law. This proposed project would cover thirty-four acres of prime farmland with a new agricultural processing factory and an office building. It's a huge project. It is not an appropriate candidate for a 'Mitigated Negative Declaration.'
Our concern is not only with the direct impacts of the proposed project'which appear considerable'but also in the possibly adverse impact of the proposed project on the future of the Spreckels area. This area contains some of the most productive agricultural land in the world. It also is home to the historic town of Spreckels, and the proposed project would have an extreme and very negative impact on that community.
In addition to the impacts of this proposed project, the choice of locations must be discussed. As stated above, the fact that a few possible alternatives can be listed and discussed is enough to prove that there needs to be a full discussion. A full EIR will provide this information to the public and to planning officials.
As we hope the foregoing comments have made clear, the law requires the County to prepare and review a full EIR prior to acting on the proposed project. The continued attempt to pass with a Mitigated Negative Declaration is inadequate and a waste of time for the applicant. LandWatch is very sympathetic to the applicant's desire to move ahead expeditiously, but because a full EIR is in fact legally required, the fastest route is to start the EIR process at the earliest time possible. LandWatch has advocated the EIR process from the very beginning, and firmly believes that if the County had taken this route, the applicant would currently be much closer to project completion.
The time taken to perform an EIR has been described as a 'death-sentence' for this project. This characterization has happened in the media, at Board of Supervisors and Planning Commission hearings, and on paper. It is unfortunate that project proponents believe this, but the law remains clear: an EIR is required. Given this, it is not productive to proceed with an inadequate environmental document. This leaves the County exposed to litigation and the applicant to further delays.
The purpose of a full EIR is to provide adequate information on the proposed project, and to allow public comment and County response. Public information and the opportunity for public participation are what make the CEQA process an effective one. This kind of accessibility to citizens is what makes a democracy work!
In general, those in favor of this project have repeatedly politicized the issue of environmental review, saying things like:
'This project is agriculture.'
'This decision will send a message to agriculture.'
'Companies like D'Arrigo are the backbone of Monterey County's economy.'
And finally: 'Are you for or against agriculture?'
We at LandWatch wholeheartedly support agriculture in Monterey County. We also try to uphold the American tradition of 'following the rules.' Thank you for taking our views into consideration.