Appeals court reverses lower court ruling in asphalt plant case

By Russell Boniface | Apr 7, 2017

SAN FRANCISCO — The California First District Court of Appeal has reversed a trial court’s dismissal of a lawsuit by Friends of Outlet Creek against the Mendocino County Air Quality Management District to prevent a proposed asphalt plant at the site of an aggregate and concrete operation.

Friends of Outlet Creek sued the district and Grist Creek Aggregates, owner of the site, in a lower court. It cited the environmental impact that a proposed asphalt processing plant on the banks of Outlet Creek would have on air quality under the California Environmental Quality Act (CEQA).

Friends of Outlet Creek asserted the district would have needed an updated environmental impact review when Grist Creek Aggregates decided to process asphalt on the industrial site. The district’s air pollution control officer, however, found that the site already was in compliance with CEQA guidelines because the site was used for aggregate and concrete processing and hot asphalt mixing by its two previous owners. In June 2015, the district officer issued an authority to construct for Grist’s proposed asphalt production.

The district and Grist Creek Aggregates successfully demurred on grounds the lawsuit was moot. The district argued that Friends of Outlet Creek could, according to the appellate court document, “only proceed against the district in an administrative mandamus proceeding under Health be and Safety Code section 40864, which the district and Grist Creek Aggregates contended cannot embrace a challenge under the CEQA.” The trial court dismissed the case.

The appeals court, however, reversed the lower court’s dismissal and ruled there is an established precedent for allowing CEQA claims against air quality management districts.

The appeals court said the only action that Friends of Outlet Creek can take in this case is to challenge the district’s authority to construct for the proposed asphalt plant as a violation of either CEQA or its own rules.

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