Filed 7/8/14 Save Atascadero v. City of Atascadero CA2/6
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


SAVE ATASCADERO,                                                              2d Civil No. B250126
                                                                           (Super. Ct. No. CV128230)
     Plaintiff and Appellant,                                               (San Luis Obispo County)

v.

CITY OF ATASCADERO,

     Defendant and Respondent.



                   Save Atascadero (Save) appeals a judgment denying its petition for writ of
mandate. Save challenges the City of Atascadero's (the City's) decision to approve the
Del Rio Commercial Area Specific Plan. Save contends the City did not proceed in the
manner required by law because its environmental impact report (EIR): (1) did not
timely disclose modeling data for an agency's screening analysis of "Type B" health risks
upon which the City relied, (2) did not adequately analyze the cumulative impact of toxic
air emissions from the project or compare them with emissions from other projects in the
area, and (3) did not recirculate a draft EIR with supplemental "Type A" health risk
assessment data and Type B modeling data. We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
                   On June 26, 2012, the City Council for the City adopted resolutions to
certify a final EIR for the Del Rio Road Commercial Area Specific Plan, amend the
General Plan, and adopt a Specific Plan Master Plan of Development for the Del Rio
Commercial Area (the project). The specific plan guides the development of about 40
acres of land on two non-contiguous parcels at the intersection of El Camino Real and
Del Rio Road. The land is currently vacant in a low-density residential area. Highway
101 and a gas station are nearby. The existing toxic air contaminant level in Atascadero
is high.
               The project has two components. The "Wal-Mart" component has a
development potential of 139,560 square feet on 26 acres, including a Wal-Mart store and
50 homes. The "Annex" component has a development potential of 120,900 square feet
of commercial uses and six homes on 13 acres. The parcels are near Highway 101 and a
gas station.
               As lead agency, the City consulted with responsible agencies and trustee
agencies interested in resources affected by the project and determined an EIR should be
prepared pursuant to the California Environmental Quality Act (CEQA; Pub. Resources
Code, § 21000 et seq.) It retained a consultant to do so.
               Diesel particulate matter is a carcinogen, and was the toxic air contaminant
of primary concern to the City in its environmental review. The final EIR concluded that
health risks from exposure to toxic air contaminants generated by the project were not
significant. Save does not challenge the adequacy of that conclusion, or the scope or
methodology of the analysis that led to it. It contends the contents of the draft and final
EIRs were deficient and therefore the City did not proceed in the manner required by law.
                                       2011 Draft EIR
               The City circulated its first draft EIR in 2011 (2011 draft EIR). It included
a health risk assessment that considered the impact of new diesel emissions from the
project on sensitive receptors (people) in the area, including people who would live off
site and people who would live in the new residential units. ("Type A" health risks.) It
did not discuss the impact on new project residents of existing sources of diesel emissions
from a nearby highway and a gas station. ("Type B" health risks.)
               The Type A analysis reported that the project's diesel truck deliveries could
expose existing "sensitive receptors" such as "[e]xisting residences and schools in the


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vicinity" to "elevated levels of particulate matter on a recurring basis." But it concluded
the health risk of exposure was not significant because the excess cancer risks associated
with the operation of the project are not expected to exceed the level of 10 in a million at
any nearby sensitive receptor.
              The draft used the cancer risk significance threshold of 10 excess cancer
cases per million people that the San Luis Obispo Air Pollution Control District (Air
District) adopted for determining when Type A potential air pollutant emissions of a
proposed project are "significant" and therefore require a "risk assessment to determine
the potential level of risk associated with their operations" in an EIR. (San Luis Obispo
Air Pollution Control District CEQA Air Quality Handbook, § 3.5.1, pp. 3-5, "the Air
District CEQA handbook).) Save does not challenge the validity of the Air District's
significance thresholds.
                                 Comments on 2011 Draft EIR
              The Air District reviewed and commented on the 2011 Draft EIR. It
pointed out that the draft EIR only assessed Type A health risks (from project emissions)
and did not assess Type B (risks to the project's future residents from existing toxic
sources in the area). It asked the City to expand Type A assessment to consider all diesel
vehicles at the project, not just delivery trucks.
              The Air District did not ask the City to analyze Type B risks. The Air
District conducted its own "screening analysis" to determine whether Type B risks are
significant, and found they are not. The screening analysis is a low level analysis using
very conservative assumptions and is used to determine whether detailed study is
warranted. The Air District did not provide (or preserve) the spreadsheet of computer
modeling output data that supported its screening analysis. It did summarize its findings
in its comment letter. It explained that it considered the "three toxic sources within 1,000
feet of the proposed project: 1) Highway 101, 2) Golden Gate Shell, and 3) diesel traffic
attracted to the proposed project" and determined the risk to project residents from these
sources to be 49 excess cancer cases per million people, below its adopted significance
threshold of 89 excess cancer cases per million people for Type B health risks.


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                           2012 Partially Recirculated Draft EIR
              The City revised the draft EIR in 2012 (2012 draft EIR) and recirculated it
because of significant changes to the project that were unrelated to the issues on appeal.
The revised draft incorporated responses to the Air District's comments with a revised
Type A assessment.
              The revised Type A assessment considered all diesel vehicles at the project,
not just delivery trucks. This resulted in a slightly increased Type A cancer risk but the
risk remained below the significance threshold of 10 excess cancer cases per million
people.
              The 2012 draft EIR also summarized the Air District's finding that the
"Type B" risk would not be significant. It did not include the Air District's modeling
data. It did summarize the Air District's findings, using the language of the Air District's
comment letter.
              The 2012 draft EIR discussed various cumulative impacts of the proposed
project with other projects, such as aesthetics, cultural impacts, and air quality. The air
quality discussion addressed cumulative carbon monoxide impacts and greenhouse gas
emissions, but did not address diesel particulate matter. It reported that out of all the
proposed or approved projects identified, none were within one mile of the project site.
The Air District's CEQA handbook advises that "A cumulative impact analysis should be
performed to evaluate the combined air quality impacts of this project and impacts from
existing and proposed future development in the area. This should encompass all planned
construction activities within one mile of the project."
                               Comments on 2012 Draft EIR
              The Air District commented favorably on the 2012 Draft EIR's health risk
assessment. It "agree[d] with the conclusions of acceptable risk." Save Atascadero also
commented on the 2012 draft EIR. It asked for the factual basis for the new vehicle
estimates underlying the expanded Type A assessment. It also asked that the draft EIR be
"revised to include" the Air District's Type B screening assessment to allow the public to
comment on it and verify its accuracy. Save also asked that the draft EIR be "revised to


                                              4
provide an assessment of the cumulative impacts of [toxic air contaminants on] sensitive
receptors in the Project vicinity."
                                         Final EIR
              The Final EIR included the City's responses to Save's comments. In
response to the request for the factual basis underlying the revised Type A assessment, it
included the underlying data as "Appendix Q" and responded that, since the revised
assessment "reaffirmed the original conclusion . . . that no significant impacts would
occur, this does not constitute a material omission of information such that recirculating
the [draft EIR] would be necessary."
              In response to Save's request to include the Air District's Type B screening
assessment, the City stated that the assessment was performed in house by the Air
District, as summarized in the draft EIR. It stated that "[g]iven the conclusion of the
Type B Health Risk Assessment, the [Air District's] comment was simply a declarative
statement, for which no response was necessary. The [Air District's] comment regarding
the Type B Health Risk Assessment was noted in the [2012 draft EIR]."
              In response to Save's request for an analysis of cumulative impacts of toxic
air contaminants, the City stated that the Air District's handbook calls for "preparation of
Type A and Type B Health Risk Assessments, such as the ones prepared for the proposed
project. The Type B analysis addresses the impacts of existing sources of emissions and
the project on sensitive receptors. There are no other planned or future projects in the
area that would contribute additional cumulative impacts; therefore, the analysis
adequately discloses the impacts of all potential sources."
                 Comments on Final EIR after Close of Comment Period
              After the period for public comment on the Final EIR closed, and one day
before the Planning Commission's June 5, 2012 hearing on it, Save submitted a comment
letter in which it asserted the EIR should be recirculated with the new Appendix Q for the
Type A analysis and with the Air District's Type B analysis. Save asserted the EIR
lacked an adequate analysis of cumulative impacts of toxic air contaminants and that, to
the extent the City relied on the Type B assessment to determine cumulative impacts, the


                                             5
underlying data should have been disclosed so the public could verify it. Save questioned
whether the City had ever reviewed the underlying data.
              The Planning Commission voted to recommend approval of the EIR. The
City's hearing was set for June 26, 2012.
              On June 13, the City exercised its discretion to respond to Save's late
comment letter. The City's consultant wrote, in a memo to the city council, that CEQA
did not require recirculation because there was no new significant information. The
memo explained that the Air District did not preserve the modeling output for the Type B
screening analysis. It stated that, at the consultant's request in June, the Air District re-
ran a Type B screening analysis (this time including all diesel vehicles) and provided the
modeling output data. The City incorporated that new data into its response in Appendix
Q. It did not recirculate. The Type B results were again below the significance threshold
of 89 excess cancer cases per million people. The risk was 53.5 per million with the
additional diesel vehicles. The memo is included in the public record.
              After Save received the memo, it retained an air quality expert. The expert
reviewed the new Type B modeling output, and on June 22, submitted a comment letter
offering the opinion that the Type B analysis did not constitute an adequate cumulative
impact analysis because it did not consider impacts to off-site receptors and did not
consider future highway traffic generated by the project. The expert reported that there is
already a significant cumulative health risk to off-site receptors in the area that exposes
those who live between the proposed project site and Highway 101 to a health risk
greater than 89 excess cancer cases per million people. In the expert's opinion, the
project's toxic air contaminant concentrations would contribute considerably to the
cumulative risk.
              The City's consultant responded, in another by memo to the city council,
that the Type A and Type B assessments together adequately considered all cumulative
impacts to off-site and on-site receptors. On June 26, the City approved the EIR and
passed resolutions with the necessary findings and approvals.




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                                      DISCUSSION
                                    Standard of Review
              The adoption of a specific plan is a quasi-legislative act. (Yost v. Thomas
(1984) 36 Cal.3d 561, 570.) Our review concerns whether there was a prejudicial abuse
of discretion. (Pub. Resources Code, § 21168.5.) Abuse is established if the agency has
not proceeded in a manner required by law or if the determination or decision is not
supported by substantial evidence. (Vineyard Area Citizens for Responsible Growth, Inc.
v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427.) We review an EIR's content
to determine whether it was prepared in the "manner required by law" (id. at p. 427), and
we review its conclusions to determine whether they are supported by substantial
evidence. (Id. at p.435.) Save challenges the EIR's content on the ground it omits
information required by CEQA. It does not however, challenge the conclusions, findings,
or methods used in the report. Nor does it complain that the report is not supported by
substantial evidence.
              We therefore consider only whether the City failed to conduct its CEQA
review in the manner required by law by omitting prejudicial information. "When the
specific claim of legal error concerns an omission of required information from the EIR,
the plaintiff must demonstrate that (1) the EIR did not contain information required by
law and (2) the omission precluded informed decisionmaking by the lead agency or
informed participation by the public. (California Native Plant Society v. City of Santa
Cruz (2009) 177 Cal.App.4th 957, 987.)
              An EIR is an informational document, designed to inform public agency
decisionmakers and the public generally of the "significant environmental effects of a
project." (Cal. Code. Regs., tit. 14, § 15121, subd. (a).) It "should be prepared with a
sufficient degree of analysis to provide decisionmakers with information which enables
them to make a decision which intelligently takes account of environmental
consequences." (Id., § 15151.) "The courts have looked not for perfection but for
adequacy, completeness, and a good faith effort at full disclosure." (Ibid.) The EIR does
not control the agency's decisions about the project, but the agency "must respond to each


                                             7
significant effect identified in the EIR" (id., § 15121, subd. (b)) by considering,
discussing, and making findings about mitigation measures, supported by substantial
evidence in the record. (Id., §§ 15091, 15126.4.) Significant environmental effects of a
proposed project may include the "effect of attracting people to the location and exposing
them to the hazards found there. (Id., § 15126.2, subd. (a).)
              But the EIR's analysis should be limited to significant effects. A
"significant effect" is a "substantial, or potentially substantial, adverse change in any of
the physical conditions within the area affected by a project." (Cal. Code. Regs., tit. 14,
§ 15382.) To determine whether an effect is significant, the lead agency must use its
"careful judgment," supported by substantial evidence, based "to the extent possible on
scientific and factual data." (Id., § 15064, subd. (b).)
              No detailed analysis is required for an insignificant effect. (Pub.Resources
Code, § 21003, subd. (c), Cal. Code. Regs., tit. 14, §§ 15128, 15143.) The EIR must
"consider and resolve every fair argument that can be made about the possible significant
environmental effects of a project." (Protect Historic Amador Waterways v. Amador
Water Agency (2004) 116 Cal.App.4th 1099, 1109.) But the EIR need only "contain a
statement briefly indicating the reasons that various possible significant effects of a
project were determined not to be significant and were therefore not discussed in detail in
the EIR." (Id., § 15128.)
              The City proceeded in the manner required by law when its 2012 draft EIR
summarized the Air District's comment letter with the explanation that its screening
analysis indicated Type B risks were not significant. A lead agency should consult with
interested agencies to identify potentially significant environmental effects, as the City
did. (Cal. Code Regs., tit. 14, § 15086, subd. (a).) The agency with expertise in air
quality advised the City that Type B health risks were not significant. CEQA requires
public agencies like the Air District to "make substantive comments" regarding the
activities within their area of expertise." (Id., subd. (c).) If the agency "identifie[s] what
the agency considers to be significant environmental effects [it] shall advise the lead
agency of those effects." (Id., subd. (d).) The Air District did not identify a significant


                                               8
Type B effect. The City was entitled to presume the Air District regularly performed its
official duties. (Evid. Code, § 664.) To determine whether there is a significant
environmental impact requiring further study, the Air District has adopted a CEQA health
risk threshold of 89 excess cancer cases per million people for "Type B" projects, which
it defines as "new land use projects that will place sensitive receptors (e.g. residential
units) in close proximity to existing toxic sources (e.g. freeway)." (APCD Handbook,
Section 3.5.1, pp. 3-6.) A lead agency may, when adopting a threshold of significance,
consider thresholds of significance recommended by other public agencies. (Cal. Code
Regs., tit. 14, § 15064.7, subd. (c).)
              Save contends that, nevertheless, the City did not proceed in the manner
required by law because it should have produced the modeling data in response to Save's
request in its comment letter. A lead agency must respond to any comments received
during the noticed comment period. (Cal. Code Regs., tit. 14, § 15088. subd. (a).)
Written responses must "describe the disposition of significant environmental issues
raised" and "address[] in detail" any "major environmental issues raised when the lead
agency's position is at variance" with the comments, providing a "good faith, reasoned
analysis in response." (Id., subd. (c).) "Conclusory statements unsupported by factual
information will not suffice." (Ibid.) Save's comment letter did not raise a major
environmental issue. It requested the data the Air District used to determine there was no
potentially significant Type B risk. A lead agency "need only respond to significant
environmental issues and do[es] not need to provide all information requested by
reviewers, as long as a good faith effort at full disclosure is made in the EIR." (Id.,
§ 15204, subd. (a).) The City's response was a good faith effort to fully disclose the
information it relied on from the Air District, an expert commenting agency. It did not
have, and had not reviewed, the Air District's modeling data.
              The City was not required to recirculate the 2012 draft EIR with Appendix
Q and the Type B modeling data because neither represented "significant new
information." A lead agency must recirculate an EIR when "significant new information
is added." (Cal. Code Regs., tit. 14, § 15088.5, subd. (a).) New information is


                                              9
"significant" only if "the EIR is changed in a way that deprives the public of meaningful
opportunity to comment upon a substantial adverse environmental effect of the project or
a feasible way to mitigate or avoid such an effect." (Ibid.) Recirculation is required if a
disclosure shows that the EIR was so fundamentally inadequate and conclusory that
meaningful public review and comment were precluded. (Id., subd. (a)(4).)
"Recirculation is not required where the new information added to the EIR merely
clarifies or amplifies or makes insignificant modifications in an adequate EIR."
(Id., subd. (b).) Appendix A and the Type B modeling data merely clarified the 2012
draft EIR's conclusions that there were no significant Type A or Type B health effects.
Recirculation was not required. Moreover, we review a decision not to recirculate an EIR
for substantial evidence. (Id., subd. (e).) Save disavows any challenge to the
substantiality of the evidence to support the City's decisions concerning this project.
              Save contends that, whether or not the Air District's Type B analysis was a
screening assessment, it was a study relied on by the EIR and should have been disclosed.
(Pub. Resources Code, §§ 21061, 21092, subd. (b)(1); Cal. Code Regs., tit. 14,
§§ 15087,subd. (c)(5), 15050, subd. (b).) We disagree. A lead agency must make
available to the public any information "cited [in the EIR] as the source for [its]
conclusion[s]." (Pub. Resources Code, § 21061) and "all documents referenced in" the
EIR. (Id, § 21092, subd. (b)(1).) The City did not rely on the Air District's modeling
data. It relied upon the Air District's expertise in determining the threshold question
whether study of Type B risks was warranted. The City made available to the public the
source it relied on when it fully reported the contents of the Air District's letter on the
subject. The Air District's modeling data was not a study relied on by the EIR.
              The EIR did not omit discussion of cumulative health impacts; they were
discussed in the Type A analysis and the Type B finding of no significance. An EIR
must discuss cumulative impacts of a project when the project's incremental effect is
cumulatively considerable. If the incremental effect is not cumulatively considerable, the
agency "need not consider that effect as significant, but shall briefly describe its basis for
concluding that the incremental effect is not cumulatively considerable." (Cal. Code


                                              10
Regs., tit., § 15130, subd. (a).) The City proceeded in the manner required by law when
it disclosed the reasons for finding that the project's toxic air contaminant impacts are not
significant. It disclosed the existing elevated toxic contaminant levels in both draft EIRs.
It analyzed the Type A impact of project emissions on sensitive receptors both on and
off-site and found it not significant. ("[F]ifty-nine receptor locations were identified . . .
where there are existing residences surrounding the proposed [project] or locations where
there are planned residences within the residential parcels within the Wal-Mart Site and
Annex Site.") It disclosed the Type B screening analysis which considered the combined
impact of on and off-site emissions on project residents and found those not significant.
The City did not omit analysis of cumulative impacts.
              Save points out that its expert ultimately found the Type B and cumulative
impact analysis lacking when he reviewed it in the week before the EIR was adopted.
But "CEQA challenges concerning the amount or type of information contained in the
EIR, the scope of the analysis, or the choice of methodology are factual determinations
reviewed for substantial evidence." (Santa Monica Baykeeper v. City of Malibu (2011)
193 Cal.App.4th 1538, 1546.) Save asked us not to conduct a substantial evidence
review. Even if we were to do so, we would conclude that substantial evidence in the
record supports the City's factual determinations. Disagreement among experts alone
does not render an EIR inadequate. (Greenbaum v. Los Anagles (1984) 153 Cal.App.3d
391, 412-413.)
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                            GILBERT, P.J.
We concur:


              YEGAN, J.


              PERREN, J.


                                              11
                                 Jac A. Crawford, Judge

                       Superior Court County of San Luis Obispo

                         ______________________________


      M. R. Wolfe & Associates, Mark R. Wolfe, John H. Farrow for Plaintiff and
Appellant Save Atascadero.
      Burke, Williams & Sorensen, Brian A. Pierik, Amy E. Hoyt for Defendant and
Respondent City of Atascadero.
      Gresham, Savage, Nolan & Tilden, John C. Nolan, Jonathan E. Shardlow for Real
Party in Interest and Respondent Wal-Mart Stores, Inc.
      Price, Postel & Parma, C.E. Chip Wullbrandt, Melissa J. Fassett for Real Party in
Interest and Respondent Montecito Bank & Trust.
      Alston & Bird, Nicki Carlsen for Real Party in Interest and Respondent The
Rottman Group.




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