To: Board of Supervisors
From: John Kopchik, Director, Conservation and Development
Report Title: Rodeo Renewed Revised EIR (County File CDLP20-02040)
☒Recommendation of the County Administrator ☐ Recommendation of Board Committee
RECOMMENDATIONS:
1. CERTIFY that the Final Revised Environmental Impact Report for the Phillips 66 Rodeo Renewed Project (State Clearinghouse #2020120330) was completed in compliance with the California Environmental Quality Act (CEQA), was reviewed and considered by the Board of Supervisors in connection with project approval, was completed in compliance with the Contra Costa County Superior Court’s July 21, 2023 statement of decision and August 23, 2023 peremptory writ of mandate, and reflects the County’s independent judgment and analysis.
2. ADOPT the CEQA findings for the project.
3. ADOPT the Mitigation Monitoring and Reporting Program for the project.
4. ADOPT the statement of overriding considerations for the project.
5. ACKNOWLEDGE that: the Board of Supervisors approved the project when it approved the land use permit (CDLP# 2020120330; the “LUP”) on May 3, 2022; the Superior Court did not rescind, modify, or invalidate the LUP; and the LUP remains in effect.
6. DIRECT the Department of Conservation and Development to file a CEQA Notice of Determination with the County Clerk and the State Clearinghouse.
7. SPECIFY that the Department of Conservation and Development, located at 30 Muir Road, Martinez, CA, is the custodian of the documents and other material which constitute the record of proceedings upon which the decision of the Board of Supervisors is based.
8. AUTHORIZE the County Counsel, or designee, to file a return to the peremptory writ of mandate issued in Communities for a Better Environment, et al. v. Contra Costa County, et al., Contra Costa County Superior Court Case No. N22-1080, and to request that the Court discharge the writ.
FISCAL IMPACT:
The applicant has paid the necessary application deposit and is obligated to pay supplemental fees to cover any and all additional costs associated with the application process.
BACKGROUND:
The California Environmental Quality Act (CEQA) of 1970 (Public Resources Code [PRC] Sections 21000 et seq.) and the CEQA Guidelines (California Code of Regulations Title 14, Section 15000) require a public agency with discretionary authority to issue a permit or other approval to evaluate the environmental impacts of its action. Phillips 66 (applicant) submitted a Land Use Permit (LUP) application for its proposed Rodeo Renewed Project (Project) with the Contra Costa County Department of Conservation and Development in 2020. Approval or denial of the LUP is a discretionary action requiring review under CEQA. As the CEQA Lead Agency with discretionary authority for approving the LUP, in May of 2022, the Board of Supervisors certified an Environmental Impact Report (referenced herein as the “2022 EIR”) for the Project and approved the Project. The 2022 EIR can be found in its entirety at the County’s website: https://www.contracosta.ca.gov/RodeoRenewed (link)
In June 2022, a CEQA lawsuit was filed in the Contra Costa County Superior Court challenging the certification of the 2022 EIR and the approval of the Project. [Communities for a Better Environment, et al., v. County of Contra Costa, et al]., Contra Costa County Superior Court Case No. N22-1080.) On July 21, 2023, the Superior Court issued a Statement of Decision in which the Superior Court remanded to the County for reconsideration three issues in the 2022 EIR. On August 23, 2023, the court issued a peremptory writ of mandate directing the County to set aside the certification of the final EIR for the Project and conduct further CEQA review to remedy three specific areas: (1) reconsider the NuStar terminal as part of the project description; (2) reconsider Unit 250 as a part of the cumulative impact analysis; and (3) reconsider the mitigation measures for the Project’s odor impacts. On October 12, 2023, the Superior Court reaffirmed its Statement of Decision, allowing the Land Use Permit to remain in place and allowing Project construction activities, and ruled that the judgment would be modified to enjoin Project operations until further order of the Court. The Superior Court did not identify any other CEQA violations, and the remaining content of the 2022 EIR is valid.
On October 24, 2023, the Board of Supervisors set aside the certification of the 2022 EIR, and DCD staff conducted further environmental review to address the three areas identified by the Court. The Revised Environmental Impact Report (REIR) addresses those three areas but makes no other changes to the original 2022 EIR for the Project. Except for the three issues specified in the Statement of Decision and writ, the remainder of the 2022 EIR previously prepared and certified by the County was either not challenged or was found by the Court to be in compliance with CEQA, and therefore remains valid. The Final REIR incorporates the Final 2022 EIR, including the Draft 2022 EIR, to the extent not revised by the Final REIR. The Final 2022 EIR (State Clearinghouse No. 20200120330), to the extent it does not conflict with the additional information provided in this Final REIR, is incorporated therein by reference.
The Revised EIR includes information that demonstrates that the NuStar rail facility is a separate project and is not part of the Rodeo Renewed Project. Therefore, in reconsidering the NuStar terminal as directed by the Superior Court, the County has determined that the project description for the Rodeo Renewed Project remains the same as that set forth in 2022 EIR and was not revised or recirculated.
The Revised EIR also includes a new cumulative impacts analysis that replaces the cumulative impacts analysis in the 2022 EIR. The new analysis incorporates information regarding Unit 250 as directed by the Superior Court. Given that the NuStar terminal is not part of the Rodeo Renewed Project, the County has determined that the NuStar terminal should be considered as a part of potential cumulative impacts. Therefore, the new analysis also incorporates and analyzes information regarding the NuStar terminal.
The air quality section of the Revised EIR provides new information regarding the Project’s odor mitigation that replaces air quality analysis of the 2022 EIR, as directed by the Superior Court.
The County released the Draft REIR for public comment on October 24, 2023. Comments were received through December 8, 2023. The Final REIR includes responses to the comments.
CONSEQUENCE OF NEGATIVE ACTION:
In the event the Revised EIR is not certified by the Board, the 2022 EIR will remain decertified and inadequate, and the applicant will not obtain the necessary permits to implement the project.