Mount Shasta Bioregional Ecology Center v. County of Siskiyou (210 Cal. App. 4th 184, 2012)

Opinion

HULL, J.

In November 2008, defendant Siskiyou County (County) approved a project to expand an existing wood veneer manufacturing facility owned by real party in interest Roseburg Forest Products Co. (Roseburg) in order to permit cogeneration of electricity for resale (Project). Plaintiffs Mount Shasta Bioregional Ecology Center (MSBEC) and Weed Concerned Citizens (WCC) filed a petition for writ of mandate against the County and the County Board of Supervisors (Board) claiming approval of the Project and certification of the environmental impact report (EIR) for the Project violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). The trial court denied the petition.

Plaintiffs appeal, contending the EIR for the Project failed to include an adequate analysis of alternatives and failed to fully disclose, analyze and mitigate air quality, noise and water impacts of the Project. We agree there are some minor deficiencies and inaccuracies in the EIR for the Project but conclude they did not prejudice the environmental review process. We therefore affirm the judgment of the trial court.

Facts and Proceedings

In the mid-1980’s, Roseburg purchased an existing wood products manufacturing facility on more than 300 acres adjacent to the City of Weed in an unincorporated area of the County and converted it into a softwood veneer processing operation. In 1996, Roseburg replaced eight boilers at the facility with a single, 120,000-pound-per-hour boiler.

In 2006, Roseburg sought approval of an expansion of the existing facility to accommodate a biomass-fueled cogeneration powerplant, whereby heat generated in the boiler could be used both for the veneer manufacturing process and for the generation of electricity for resale. The proposed Project “would include upgrading and retrofitting the existing power facility within the existing boiler house with a 15-megawatt steam-driven cogeneration system, including a General Electric turbine generator, a new exterior cooling tower, and a new electrical substation consisting of a 50-foot tall communications tower and control building.” The Project equipment would be housed on less than one acre of the total 300-acre site, and the closest residence to the Project site would be approximately 250 feet away.

Much of the fuel for the Project will be generated at the facility and other manufacturing facilities from the bark and trim removed from logs used in the wood veneer production. Other fuel would come from forest management activities in the surrounding region, including community fuel breaks and firesafe thinning.

As stated in the EIR for the Project: “The overarching objective of the proposed project is to generate and sell excess power that is efficiently produced using sustainably-harvested renewable resources, offsetting the need for additional electricity generated from the burning of fossil fuels to support Roseburg’s own facility operations. The purpose of the proposed project is also to aid the state power grid as a whole and help reduce regional energy shortfalls, and meet state air quality attainment goals by reducing air pollutants and greenhouse gas emissions.”

On December 6, 2006, the County Planning Commission (Planning Commission) approved a categorical exemption from CEQA and a conditional use permit for the Project. Nine days later, MSBEC and others appealed the Planning Commission’s decision.

Roseburg later withdrew its application and submitted a new one. On June 29, 2007, the County issued a notice of preparation of an EIR for the Project.

On April 18, 2008, the County, as the lead agency, released for public review and comment a draft environmental impact report (DEIR) for the Project. Among other things, the DEIR estimates that, with implementation of the Project, approximately 15 truck trips per day, five days per week, with a peak of 27 trips per day during four months in the fall and winter, will be required to bring additional fuel to the facility. The DEIR also explains that “steam and resulting condensate (steam that has cooled and has converted back to a liquid state) would be processed in a closed-loop system, resulting in no off-site discharge of water product from the boiler or turbine.”

Regarding the source for Project water, the DEIR states; “Water usage for Roseburg originates from Boles and Beaughton Creeks, both of which are adjudicated. Beaughton Creek serves a portion of the City of Weed, as well as a local water bottling plant. The dominant water use on site comes from Boles Creek, which is used for sprinkling the log decks through a recirculated sprinkler system. Additional uses include water for the log vats, dryer washing and boiler operation.” The DEIR indicates current water consumption at the facility is 64,000 gallons per day (gpd) and the Project will require an additional 56,000 gpd. However, because this total of 120,000 gpd is below historic water usage during the 1990’s of 123,000 gpd and below the current maximum allowable consumption by Roseburg of 1,467 million gallons per year (mgy), the DEIR concludes no mitigation of water impacts will be needed.

Regarding air quality issues, the DEIR indicates; “The proposed project will also include the installation of pollution control equipment. [County Air Pollution Control District] Rule 6.1 requires that best available control technology for [nitrogen oxides (NOx)] be applied as part of the project. This will include selective non-catalytic reduction equipment to control emissions of NOx from the boiler. In addition, the project applicant has committed to installing filtration to control diesel particulate matter emissions from the fuel handling equipment (i.e., Bobcat and front-end loader).”

On the issue of Project noise, the DEIR indicates major information comes from two noise studies, one prepared by Environmental and Occupational Risk Management (EORM) dated February 19, 2007 (the EORM Report), and one prepared by ExperShare dated July 27, 2007 (the ExperShare Report). The DEIR contains a table, “Table 3.7-2,” summarizing 15-minute average sound levels at various locations in the community around the Project site, as reflected in the EORM Report. Another table, “Table 3.7-3,” summarizes noise measurements from the ExperShare Report. According to the DEIR, the daytime noise measurements are below the County’s daytime noise standard but above Weed’s daytime noise standard in some locations, whereas all nighttime noise measurements are above Weed’s nighttime noise standard.

The DEIR adopts a significance standard for Project noise that requires both that the new equipment increase noise in adjacent areas by at least 3.0 decibels (dB) and that overall noise in such areas exceeds the applicable County or Weed noise standard. Based on the EORM Report, the DEIR indicates predicted noise increases from the new Project equipment will be 0.5 A-weighted decibels (dBA), which represents an overall frequency-weighted sound level in dB that approximates the frequency response of the human ear. The DEIR also predicts noise increases from Project equipment and increased truck traffic together to be only 1.0 dBA. Hence, the DEIR concludes the noise impact from the Project will not be significant. Nevertheless, based on measurements reflected in the ExperShare Report for residences farther from the Project site, the DEIR indicates those residences could experience noise increases in excess of the 3.0 dB threshold and overall noise levels above the Weed nighttime standard. Therefore, the DEIR includes mitigation measure N-l, requiring Roseburg to cease deliveries before 7:00 a.m. or implement other measures to reduce the noise increase below 3.0 dB.

The comment period for the DEIR originally ended on June 2, 2008. However, it was extended to July 21, 2008. Many comment letters were received by the County expressing a wide range of environmental concerns.

A final environmental impact report (FEIR) was prepared in September 2008 which responded to the public comments. Regarding the Project description, the FEIR adds the following: “Treatments will be applied to the boiler building and the new equipment located within the building to control exterior noise. The potential treatments include but are not limited to adding additional mass to the building shell, installing acoustical absorption within the building, and installing enclosures around specific pieces of equipment.” (Boldface omitted.)

Regarding noise measurements reflected in the EORM Report, the FEIR clarifies that the closest residence to the Project site would be 275 feet away rather than 300 feet away. The FEIR therefore amends “Table 3.7-5” to reflect a predicted noise increase from Project equipment of 0.6 dBA and amends “Table 3.7-6” to reflect a predicted noise increase from Project equipment and truck traffic of 1.1 dBA.

Also as to Project noise, the FEIR adds to the summary of ExperShare noise measurements in Table 3.7-3 measurements taken from Woodridge Court, which measurements are slightly higher than the other measurements in the report. The FEIR also amends the statement that measured noise levels do not exceed the County’s noise standard and adds: “There were several days at Union Street and Woodridge Court where sound levels exceeded 60 Ldn.” (Boldface omitted.) “Ldn” is defined in the EIR as “[t]he energy average of the A-weighted sound levels occurring during a 24-hour period, with 10 dB added to the A-weighted sound levels occurring during the period from 10:00 p.m. to 7:00 a.m.”

The FEIR also adds an explanation that, at the time the EORM Report was prepared, Roseburg had not identified all the Project equipment that will be located within the existing boiler building. However, because the building will provide substantial noise reduction, the noise analysis assumes there will be no meaningful contribution to noise levels from this unidentified equipment. Nevertheless, the FEIR adds mitigation measure N-2, which provides that if noise complaints are received and are attributable to the new Project equipment, Roseburg will retain a qualified acoustical consultant to measure noise levels. If it is determined the new equipment is causing a noise increase greater than 1.0 dB at the nearest residence, Roseburg will implement additional noise-reducing treatments around the equipment to reduce the noise increase below 1.0 dB.

On September 30, 2008, the Planning Commission certified the FEIR and approved the Project. In its resolution approving the Project, the Planning Commission found the DEIR was properly circulated, public comments were received and included in the FEIR, and the FEIR properly replied to the comments when necessary. The Planning Commission found: “The [FEIR] has been properly completed and has identified all significant environmental effects of the Project, and there are no known potential environmental effects that are not addressed in the [FEIR].” The Planning Commission further found: “The Project has been modified with mitigation measures to eliminate significant impacts or to reduce such impacts to a level of insignificance in all instances.” The Planning Commission certified that the FEIR “has been completed in compliance with CEQA” and the FEIR “reflects the independent judgment of the Planning Commission.”

MSBEC and others appealed the Planning Commission’s decision to the Board. On November 13, the Board affirmed the Planning Commission’s decision.

Plaintiffs initiated this action against the County and the Board seeking a writ of mandate compelling defendants to vacate their decision approving the Project and certifying the FEIR. As alleged in the petition, plaintiff MSBEC “is a non-profit organization working toward preserving biodiversity and the integrity of the environment in general in the Siskiyou County area.” Plaintiff WCC “is an unincorporated association formed in June 2007 for the purpose of protecting the natural and cultural resources in and around the City of Weed.” Both MSBEC and WCC are composed of persons whose economic, health, safety, and aesthetic interests will be injured if approval of the Project is not set aside pending full compliance with CEQA and all other laws. Plaintiffs allege various deficiencies in the DEIR and failure to provide adequate responses to public comments in the FEIR. Plaintiffs further allege defendants’ findings regarding Project impacts, mitigation measures and alternatives are not supported by substantial evidence in the record and the Project approval conflicts with the County’s general plan.

The trial court denied the petition, concluding the EIR’s for the Project were sufficient under the circumstances. On March 16, 2010, the trial court entered judgment for defendants. Plaintiffs appeal.

Discussion

I

Standard of Review

“[T]he Legislature intended [CEQA] ‘to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ ” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 [253 Cal.Rptr. 426, 764 P.2d 278] (Laurel Heights).) “The EIR is the primary means of achieving the Legislature’s considered declaration that it is the policy of this state to ‘take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.’ [Citation.] ... An EIR is an ‘environmental “alarm bell” whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.’ [Citations.] The EIR is also intended ‘to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.’ [Citations.] Because the EIR must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees. [Citations.] The EIR process protects not only the environment but also informed self-government.” (Id. at p. 392.)

“Where an EIR is challenged as being legally inadequate, a court presumes a public agency’s decision to certify the EIR is correct, thereby imposing on a party challenging it the burden of establishing otherwise.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530 [78 Cal.Rptr.3d 1].) “[Public Resources Code s]ection 21168.5 provides that a court’s inquiry in an action to set aside an agency’s decision under CEQA ‘shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion 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.’ As a result of this standard, ‘[t]he court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.’ [Citation.]” (Laurel Heights, supra, 47 Cal.3d at p. 392, fn. omitted.) We will not set aside an agency’s approval of an EIR on the ground that a different conclusion would have been equally or even more reasonable. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 [276 Cal.Rptr. 410, 801 P.2d 1161] (Goleta Valley).)

Our review in a CEQA case, as in other mandamus actions, is the same as that of the trial court. We review the agency’s decision, not that of the trial court. (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162 [77 Cal.Rptr.3d 578, 184 P.3d 709].) Such review differs according to the type of error claimed. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 [53 Cal.Rptr.3d 821, 150 P.3d 709].) “Whether an ‘agency has employed the correct procedures,’ is reviewed ‘de novo . . . “scrupulously enforc[ing] all legislatively mandated CEQA requirements” [citation] . . . .’ [Citation.] But an ‘agency’s substantive factual conclusions’ are ‘accord[ed] greater deference.’ [Citation.] ‘In reviewing for substantial evidence, the reviewing court “may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,” for, on factual questions, our task “is not to weigh conflicting evidence and determine who has the better argument.” [Citation.]’ ” (Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 531.)

“When assessing the legal sufficiency of an EIR [as an informational document], the reviewing court focuses on adequacy, completeness and a good faith effort at full disclosure. [Citation.] ‘The EIR must contain facts and analysis, not just the bare conclusions of the agency.’ [Citation.] ‘An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ [Citation.] Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1390-1391 [133 Cal.Rptr.2d 718].)

II

Alternatives Analysis

Plaintiffs contend the EIR in this matter contains an insufficient range of alternatives to the Project. “CEQA requires that an EIR, in addition to analyzing the environmental effects of a proposed project, also consider and analyze project alternatives that would reduce adverse environmental impacts. [Citations.] The CEQA Guidelines state that an EIR must ‘describe a range of reasonable alternatives to the project. . . which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project....’” (In re Bay-Delta etc., supra, 43 Cal.4th at p. 1163, quoting Cal. Code Regs., tit. 14, § 15126.6, subd. (a); all further references to the CEQA guidelines in Cal. Code Regs., tit. 14, shall be referred to as Guidelines followed by the section number.)

However, an EIR need not consider every conceivable alternative to the project. (In re Bay-Delta etc., supra, 43 Cal.4th at p. 1163.) “ ‘In determining the nature and scope of alternatives to be examined in an EIR, the Legislature has decreed that local agencies shall be guided by the doctrine of “feasibility.” ’ [Citation.] CEQA defines ‘feasible’ as ‘capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.’ (Pub. Resources Code, § 21061.1; see also [Guidelines,] § 15364.) [][] ‘There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.’ ([Guidelines,] § 15126.6, subd. (a).) The rule of reason ‘requires the EIR to set forth only those alternatives necessary to permit a reasoned choice’ and to ‘examine in detail only the ones that the lead agency determines could feasibly attain most of the basic objectives of the project.’ (Id., § 15126.6, subd. (f).) An EIR does not have to consider alternatives ‘whose effect cannot be reasonably ascertained and whose implementation is remote and speculative.’ (Id, § 15126.6, subd. (f)(3).)” (In re Bay-Delta etc., supra, 43 Cal.4th at p. 1163.)

An examination of an EIR’s alternatives analysis must begin with the project’s objectives, for it is these objectives that a proposed alternative must be designed to meet. (In re Bay-Delta etc., supra, 43 Cal.4th at p. 1163; Guidelines, § 15124, subd. (b).) The DEIR identifies the following primary objectives of the Project: (1) “generate renewable energy that is produced in an efficient, economically viable and environmentally sound manner”; (2) “generate electricity in a closed-loop system through the utilization of the boiler’s steam, which is fueled by a variety of sources, including the facility’s wood by-products, Roseburg’s timber lands, [United States Forest Service], and numerous small industrial suppliers all of which will supply clean, unaltered hog fuel”; (3) “offset Roseburg’s own power needs by selling the excess green power for use in California”; (4) “aid the power grid as a whole and help reduce regional energy shortfalls”; (5) “assist California in meeting its legislated Renewable Energy Portfolio standards for the generation of renewable energy in the state; these standards require investor-owned utilities to purchase 20% of their power from renewable sources by 2010”; (6) “offset the need for additional electricity generated from fossil fuels, which emit more air pollutants than biomass-generated electricity, thereby assisting the state in meeting its air quality goals and reducing greenhouse gas emissions”; and (7) “reduce the need to conduct slash bums of local forest floor, forest thinning, and logging operation debris, which emits uncontrollable air pollutants.”

The alternatives section of the DEIR states: “After completing an initial review of the proposed project along with all potential environmental impacts, the County identified a ‘reasonable range’ of alternatives, as defined by CEQA. There were not any alternatives identified that: 1) would meet most or all of the project objectives, 2) are considered feasible, and 3) would avoid or substantially reduce one or more potentially significant impacts of the proposed project. Several alternatives were considered but rejected from further consideration, as described below. Another alternative, a No Project alternative, was further evaluated and is described below.”

The DEIR then identifies three alternatives that were considered but rejected. The first, a “Reduced Capacity Alternative,” involves a smaller cogeneration facility sufficient only to supply Roseburg’s onsite power needs. According to the DEIR, this alternative was rejected because it would not meet the objectives of an economically viable project, of putting green power into the California energy grid, and of helping meet California’s 2010 green energy portfolio goals.

The second alternative, an “Alternative Boiler Location Onsite,” was rejected because “there are no economic, operational or environmental benefits to” relocating the boiler, inasmuch as this would require installation of an additional boiler and greater air emissions. It would also eliminate the possibility of using steam generated in the veneer production process. And, according to the DEIR, moving the existing facilities to a new location “would result in increased construction noise and air quality impacts, as well as additional construction truck and vehicle trips.”

The third alternative, an “Alternative Location Offsite,” involves construction of a new facility at Roseburg’s facility in Oregon. This too was rejected as not meeting the Project’s objectives. According to the DEIR, “[Relocation of the cogeneration facility outside of California would require substantial new infrastructure construction, would result in an increase of air emissions resulting from hauling fuel from California to Oregon, and require additional coordination between the state of Oregon and the California Public Utilities Commission as to the logistics of wheeling power between states.”

The only alternative considered in depth in the DEIR is the “No Project” alternative.

Plaintiffs contend the three alternatives considered and rejected during scoping cannot be counted for purposes of determining whether the EIR contained an adequate range of alternatives, and the remaining “No Project” alternative alone is not enough. According to plaintiffs, “CEQA does not allow an agency to reject every alternative during the scoping process as infeasible and then claim that the discussion of alternatives as infeasible met the requirement that [the] EIR described a range of potentially feasible alternatives to the project.”

We agree alternatives considered and rejected during the scoping phase cannot be counted in determining whether the EIR has considered and analyzed a reasonable range of alternatives. CEQA requires the analysis of feasible alternatives. “The issue of feasibility arises at two different junctures: (1) in the assessment of alternatives in the EIR and (2) during the agency’s later consideration of whether to approve the project. [Citation.] But ‘differing factors come into play at each stage.’ [Citation.] For the first phase— inclusion in the EIR—the standard is whether the alternative is potentially feasible. [Citations.] By contrast, at the second phase—the final decision on project approval—the decisionmaking body evaluates whether the alternatives are actually feasible. [Citation.] At that juncture, the decision makers may reject as infeasible alternatives that were identified in the EIR as potentially feasible.” (California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 981 [99 Cal.Rptr.3d 572].)

The EIR must include an analysis of the alternatives that were found during the scoping phase to be potentially feasible. Those rejected during the scoping phase as not potentially feasible are not counted.

Nevertheless, that does not mean an EIR is inadequate if all alternatives considered by the agency during the scoping phase are determined not to be potentially feasible. Plaintiffs’ argument presupposes an EIR indicating that no alternatives were found to be potentially feasible violates CEQA. However, as plaintiffs themselves acknowledge, there is no rule specifying a particular number of alternatives that must be included. “CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose.” (Goleta Valley, supra, 52 Cal.3d at p. 566.)

Plaintiffs do not identify any alternatives that they contend are potentially feasible given the objectives of the Project. Instead, they argue the burden of identifying alternatives lies with the agency, citing Laurel Heights. However, Laurel Heights merely acknowledged the general obligation on the lead agency to identify alternatives and mitigation measures during the CEQA process. (Laurel Heights, supra, 47 Cal.3d at pp. 405-406.) But, as explained above, it is the appellants’ burden to demonstrate inadequacy of the EIR. An appellant must therefore show the agency failed to satisfy its burden of identifying and analyzing one or more potentially feasible alternatives. An appellant may not simply claim the agency failed to present an adequate range of alternatives and then sit back and force the agency to prove it wrong.

In their reply brief, plaintiffs suggest the EIR should have considered an offsite alternative whereby the plant would be located closer to the trees used as a fuel source, thereby reducing hauling and attendant noise. However, plaintiffs make no attempt to show how such an alternative would have met most of the goals of the Project, would have been potentially feasible under the circumstances, or would have reduced overall environmental impacts of the Project.

Also in their reply brief, plaintiffs challenge the rationale used by the County to reject various of the alternatives as not potentially feasible. However, this argument presents nothing more than a difference of opinion. Plaintiffs do not contend, as they must, that there is no substantial evidence to support the County’s rejection of the three alternatives as not potentially feasible.

Absent a showing that the EIR failed to include a particular alternative that was potentially feasible or that, under the circumstances presented, including only the Project and the “No Project” alternatives did not amount to a reasonable range of alternatives, plaintiffs’ challenge to the alternatives analysis fails.

III

Air Quality Impacts

Plaintiffs challenge that portion of the EIR discussing the air quality impacts of the Project. They contend the EIR failed to identify the proper baseline of air quality emissions, failed to identify and mitigate the Project’s air quality impacts, failed to analyze adequately the increase in NOx (nitrogen oxides) emissions from the Project, and failed to identify the maximum number of truck trips required by the Project and the air quality impacts associated with those trips. However, plaintiffs provide detailed argument and citations to authority only as to the one claim that the EIR uses the wrong baseline and consequently understates the Project’s environmental impacts. We therefore need not address the other contentions. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [21 Cal.Rptr.2d 834]; Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647 [199 Cal.Rptr. 72].)

Guidelines section 15125, subdivision (a), reads in relevant part: “An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.”

“A long line of Court of Appeal decisions holds, in similar terms, that the impacts of a proposed project are ordinarily to be compared to the actual environmental conditions existing at the time of CEQA analysis, rather than to allowable conditions defined by a plan or regulatory framework. This line of authority includes cases where a plan or regulation allowed for greater development or more intense activity than had so far actually occurred, as well as cases where actual development or activity had, by the time CEQA analysis was begun, already exceeded that allowed under the existing regulations. In each of these decisions, the appellate court concluded the baseline for CEQA analysis must be the ‘existing physical conditions in the affected area’ [citation], that is, the ‘ “real conditions on the ground” ’ [citations], rather than the level of development or activity that could or should have been present according to a plan or regulation.” (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 320-321 [106 Cal.Rptr.3d 502, 226 P.3d 985], fns. omitted.)

Plaintiffs contend the EIR in the present matter violates the foregoing rule by using permitted emission rates rather than actual emission rates at the existing facility. Plaintiffs argue actual emission rates at the facility have been only 53 percent of allowable emission rates. Plaintiffs assert the County itself has acknowledged the maximum steam emission rate at the facility has averaged 112,000 pounds per hour, whereas the permitted rate is 120,000 pounds per hour. Thus, plaintiffs argue, “by the County’s own admission, the ‘historic’ emissions are 93% of the permitted emissions.” And because the EIR begins with the wrong baseline, plaintiffs argue, the EIR’s analysis of Project impacts on air quality is likewise incorrect and misleading.

For much of plaintiffs’ argument, including their assertion that actual emissions have been only 53 percent of permitted emissions, they rely solely on a letter prepared by Dr. Petra Pless that was submitted to the Board the day before the hearing on plaintiffs’ appeal of the Planning Commission decision. This 16-page, single-spaced letter was accompanied by 101 pages of supporting literature. The Board allowed the Pless letter to be made part of the record but refused to consider it as evidence for purposes of plaintiffs’ appeal. County hearing rules require that all documentary evidence be submitted at least five days before the hearing date.

Defendants have requested that we take judicial notice of County Resolution No. 03-92, adopted May 20, 2003, and setting forth County hearing rules. We grant the request. County hearing rules, rule 3(A)(2) requires that all documentary evidence be submitted at least five days before the applicable hearing.

“[EJxtra-record evidence is generally not admissible in traditional mandamus actions challenging quasi-legislative administrative decisions on the ground that the agency ‘has not proceeded in a manner required by law’ within the meaning of Public Resources Code section 21168.5.” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576 [38 Cal.Rptr.2d 139, 888 P.2d 1268].) In the present matter, the Pless letter was not timely submitted and the Board refused to consider it for purposes of plaintiffs’ appeal.

Plaintiffs argue defendants failed to challenge the Pless letter in the trial court. However, because we review the agency’s decision, not that of the trial court, any failure to challenge the letter in the trial court is of no import.

Plaintiffs further argue defendants failed to try and exclude the Pless letter from the administrative record and in fact certified the letter as part of the administrative record. However, while the Board allowed the letter to be lodged in the administrative record, this was a meaningless act except insofar as it provided plaintiffs an opportunity to challenge exclusion of the letter from evidence before the Board. Plaintiffs have raised no such challenge. The Board excluded the letter from the evidence before it for consideration. Absent error in this regard, the letter is not properly part of the record before us on review of the Board’s decision.

Plaintiffs argue “[c]omments submitted after the close of the comment period on the [DEIR], but before the approval of the project, are part of the administrative record.” However, the Pless letter was not submitted before approval of the Project. It was submitted just before the hearing on plaintiffs’ appeal of such approval. And it was untimely in that regard.

Turning to the merits of plaintiffs’ challenge to the baseline emissions, defendants disagree with the basic premise of plaintiffs’ argument. They assert “[t]he baseline used to assess the air quality impacts was based on data representative of actual operations at the Existing Facility and not the maximum permitted or hypothetical rates.” Defendants argue an emission rate of 120,000 pounds per hour was properly used as “a reasonable approximation” for the baseline steam production, because evidence in the record shows the existing facility has produced steam at an average rate of 112,000 pounds per hour.

Plaintiffs seize upon this latter argument to assert the County improperly relied on an approximation of emissions rather than actual emissions. However, plaintiffs cite nothing that would preclude an agency from arriving at an actual emission rate using an approximation method. Nor do they explain how use of an approximation that is nearly identical to actual usage would make the EIR somehow misleading and ineffective as an informational document.

At any rate, defendants argue plaintiffs are relying on overall steam emission rates when the real question for purposes of environmental analysis is the emission rates of the various pollutants at issue. Defendants assert, for ■ example, the maximum permitted emission rate of NOx is 140 pounds per hour, or 3,360 pounds per day, whereas the EIR uses a significantly lower baseline NOx emission rate of 660 pounds per day. Plaintiffs do not argue the 660 pounds-per-day figure is not an accurate approximation of actual NOx emissions. Similarly, the EIR uses a baseline particulate emission rate of 46.1 pounds per day, whereas the permitted rate was 407 pounds per day. Again, plaintiffs do not challenge the 46.1 pounds per day figure as not being an accurate approximation.

But assuming the emission rates for NOx and particulates are based on an approximation of 120,000 pounds of steam production rather than 112,000 pounds of production based on measurements, this small discrepancy can hardly be considered significant, especially given the wide gap between the emission rates used in the EIR for NOx and particulates and the permitted rates. In an action challenging an agency decision under CEQA, there is no presumption that an error was prejudicial. (Pub. Resources Code, § 21005, subd. (b).) In order to be prejudicial, an error or omission in the EIR must be such as would have precluded informed decisionmaking and informed public participation. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712 [270 Cal.Rptr. 650].) We cannot see on this record how a difference of 7 percent between actual and approximate emissions would have precluded informed decisionmaking or informed public participation.

Plaintiffs also contend the EIR included an incomplete description of the process to be used in reducing NOx emissions. The EIR states the process to be used is SNCR (selective noncatalytic reduction). According to plaintiffs, there are two types of SNCR, ammonia based and urea based, and the ammonia-based type uses anhydrous ammonia, which is a toxic substance. The EIR fails to identify which type of SNCR will be used. And, plaintiffs argue, if ammonia-based SNCR is to be used, the EIR fails to quantify the “ammonia slip” from the process.

Plaintiffs’ arguments are again based on information in the Pless letter, which is not properly part of the record before us. Plaintiffs also cite a letter written by the State Air Resources Board (CARB), which states in part: “Ammonia will be used in the SNCR system for [NOx] emission control; however it is unclear whether anhydrous or aqueous ammonia is proposed.”

Defendants counter that an EIR need only include a “general description” of the Project and the EIR here satisfied that requirement. The Project description states: “The proposed project will also include the installation of pollution control equipment. [County Air Pollution Control District] Rule 6.1 requires that best available control technology for NOx be applied as part of the project. This will include selective non-catalytic reduction equipment to control emissions of NOx from the boiler.” Defendants further argue “[t]he Project was never intended to use ammonia as the SNCR reagent.” Instead, the Project will use urea. Defendants assert discussion of the reagent was therefore unnecessary because it was not needed for evaluating the Project’s environmental impacts.

We agree with defendants the EIR description was adequate. Guidelines section 15124 reads in relevant part: “The description of the project shall contain the following information but should not supply extensive detail beyond that needed for evaluation and review of the environmental impact. [][] . . . [][] (c) A general description of the project’s technical, economic, and environmental characteristics . . . .” Defendants assert there is no intent that the Project use ammonia as the reagent for reducing NOx emissions. Hence, there is no need to describe the environmental impacts from using ammonia. Although plaintiffs argue the EIR should at least have identified whether ammonia or urea would be used, we note that nothing in the public comments submitted to the County on the DEIR requested such information or questioned the adequacy of the DEIR in this regard. As for the CARB comment letter, this was not submitted in connection with the adequacy of the DEIR but as to Roseburg’s request for authority to construct.

Plaintiffs have failed to show any deficiency in the EIR’s air quality analysis.

IV

Noise Impacts

Plaintiffs contend the EIR failed to disclose, analyze and mitigate the Project’s various noise impacts. They argue the EIR did not identify the Project’s cumulative noise impacts either in the City of Weed or from increased truck trips and did not disclose and analyze noise increases from the proposed generator. They further argue the County improperly failed to recirculate the EIR after appending two noise studies to it. Finally, plaintiffs argue there is no substantial evidence to support the County’s finding that the Project’s noise impacts are less than significant or that the adopted mitigation measures would reduce the Project’s noise impacts to less than significant. We consider each of these arguments below.

A. Direct Noise Impacts

Plaintiffs contend there is insufficient evidence to support the EIR’s conclusion that Project noise impacts will be less than significant. Plaintiffs assert the EIR states noise increases from the cooling towers will be no more than 1.0 dBA, but an increase of 3.0 dBA is required for the increase to be perceptible and significant. However, plaintiffs argue, the EIR contains no 24-hour noise study, which they claim is necessary to determine if outdoor noise is already excessively loud. According to plaintiffs, the EIR instead relies on “just a few 15-minute noise level measurements.” Plaintiffs assert the EIR and expert comments show the Project will in fact increase noise levels at nearby homes by 4.4 to 5.6 dB or more, which “would be audible to nearly everyone living nearby.”

Defendants counter that the EIR relies primarily on the EORM Report but also considers the ExperShare Report in evaluating the Project’s noise impacts. Defendants assert plaintiffs’ arguments are based on the ExperShare Report, whereas the County was free to rely primarily on the EORM Report instead.

The DEIR specifies a significance threshold for both construction and Project noise. For Project noise, the threshold reads; “[Operation of the new equipment included in the proposed project and related operations would increase noise at adjacent noise-sensitive uses by 3 dB (a barely perceptible increase) where existing noise at those uses exceeds the City of Weed and Siskiyou County General Plan Noise Element standard of 60 Ldn or the City of Weed Noise Ordinance standards of 50 dBA (7:00 a.m. to 10:00 p.m.) and 40 dBA (10:00 p.m. to 7:00 a.m.).”

Plaintiffs assert the applicable noise threshold under the EIR does not require both an increase of at least 3.0 dB and an existing noise level that exceeds the applicable standard. They assert instead that either one or the other will suffice. However, plaintiffs rely for this argument on a reference to general state CEQA Guidelines, not the threshold established for this Project. Plaintiffs conveniently ignore the threshold language quoted in the preceding paragraph, which immediately follows the discussion of the general CEQA Guidelines.

The FEIR identifies a noise increase from operation of the Project equipment of 0.6 dBA and from combined equipment and truck deliveries of 1.1 dBA. Thus, according to the EIR, while the overall noise level might exceed nighttime noise standards, the increase in noise will be less than the 3.0 dBA threshold and therefore is not significant.

After acknowledging the foregoing, plaintiffs assert: “The EIR erroneously states that the ambient community noise levels are below that limit as the data in the tables demonstrate that some noise levels exceeded 60 dBA (Ldn).”

We are not quite sure what plaintiffs are talking about here, since the EIR is referring to the standard of noise increases (less than 3.0 dBA) rather than the standard for overall noise levels and readily acknowledges overall noise levels may exceed relevant noise standards. At any rate, the table to which plaintiffs refer indicates there were some noise measurements in the vicinity of the Project that exceeded 60 dBA. But plaintiffs are mixing apples with oranges here. The noise levels reflected in the table are average readings for 15-minute periods at various times during the day (Leq) whereas the value to which plaintiffs refer, 60 dBA (Ldn), is an average for a 24-hour period. The table shows only that, at times, the noise level exceeds 60 dBA. It does not show a 24-hour average exceeding 60 dBA.

In a footnote, plaintiffs assert the EIR states the noise levels reflected in Table 3.7-3 (the ExperShare measurements) are below the County’s outdoor noise standard of 60 Ldn, yet data in the table show some noise levels in excess of 60 Ldn. However, this ignores the correction in the FEIR, which acknowledged that “[t]here were several days at Union Street and Woodridge Court where sound levels exceeded 60 Ldn.” (Boldface omitted.)

Plaintiffs next assert the EIR contains no 24-hour noise test which, according to plaintiffs, “is required to determine if the outdoor yard[s] of these homes are already excessively loud.” However, plaintiffs cite as their sole support for this 24-hour requirement a letter to the Board from Dale LaForest, a Project opponent. In that letter, LaForest asserts the County’s general plan limits outdoor noise in residential areas to 60 dB(Ldn). However, while a measurement expressed in terms of Ldn specifies a 24-hour average, there is nothing to suggest such average must be determined by a 24-hour measurement rather than periodic sampling during a 24-hour period.

Plaintiffs next assert: “The EIR instead relies inaccurately upon just a few 15-minute noise level measurements of 53.9, 53.9 and 51.9 dBA(Leq_15_min), which, if proportionately representative of sound levels over 24 hours, when averaged and converted, also exceeds 60 dBA(Ldn).” Plaintiffs do not explain how they take three 15-minute intervals with average noise levels less than 60 dBA and turn them into an overall 24-hour average exceeding 60 dBA. Perhaps it is the definition of Ldn contained in the EIR, which reads: “The energy average of the A-weighted sound levels occurring during a 24-hour period, with 10 dB added to A-weighted sound levels occurring during the period from 10:00 p.m. to 7:00 a.m.” Under this definition, nighttime noise measurements would be increased by 10 dB before computing an average. However, plaintiffs fail to explain the source of the noise level measurements or when they were taken. At any rate, as explained above, the significance level adopted for the EIR requires both an overall noise level exceeding the applicable standard and an increase of at least 3.0 dBA.

Plaintiffs next take issue with the EIR’s indication that the noise increase will not exceed 1.0 dBA. Plaintiffs assert both the EIR and expert comments demonstrate the increase will instead be as much “as 4.4 to 5.6 dB or more.” Plaintiffs cite the following discussion in the DEIR: “Noise measurement results indicate that there would be conditions where ambient noise is less than 52.7 dBA. Measurements conducted by Expershare indicate that ambient noise can be as low as 44.3 dBA in the residential area south of the project site. If this value is used as the ambient noise level, the sum of the operational noise level (46.7 dBA) and the ambient noise level would be 48.7 dBA. This represents a 4.4 dB increase over the ambient noise level. Because the equipment and truck noise level would exceed the nighttime noise standard of 40 dBA under these conditions and result in an increase in excess of 3 dB, this impact is considered to be significant.”

First, plaintiffs’ argument ignores the correction in the FEIR that the predicted overall noise increase would be 1.1 dB, not 1.0 dB. At any rate, we fail to see what plaintiffs find objectionable about the fact the EIR identifies a noise increase of 1.1 dB based on measurements from one noise study (the EORM Report) but also indicates a greater increase in noise could be experienced in locations farther from the Project site based on the results of another study (the ExperShare Report). Plaintiffs do not dispute the accuracy of the EORM study. The EIR did exactly what plaintiffs would have it do—it disclosed that greater noise increases might be experienced as a result of the Project.

As for plaintiffs’ assertion that noise increases could be as high as 5.6 dB, they cite as support a letter from Dale LaForest in which he asserts “the noise from this project’s new cooling tower, when added to the noise from the existing veneer facility, will total 66.8 db(A)Ldn, considerably louder than County or City of Weed maximum allowable noise limits.” Nowhere does LaForest identify a noise increase of 5.6 dB. Furthermore, the County was not required to accept the veracity of LaForest’s representations.

B. Mitigation Measures

The FEIR identifies two mitigation measures for noise impacts, N-l and N-2.

Mitigation measure N-l states; “If the County receives complaints concerning noise from truck deliveries before 7:00 a.m.[,] Roseburg shall conduct noise measurements at the affected location to determine if the new equipment and truck deliveries are causing the 15-minute median sound level to increase by 3 dB or more. If it is determined that the new operations are increasing noise by 3 dB or more, Roseburg shall cease delivery operations before 7:00 a.m. or implement other measures to limit the increase in noise to 3 dB or less.”

Mitigation measure N-2 states: “If noise complaints are received and are directly attributable to the new equipment after completion of the project, Roseburg will retain a qualified acoustical consultant to measure exterior noise produced by the new equipment to confirm that the project-related increase in noise is less than 1 dB as measured in terms of one-hour Leq and daily Ldn values at the nearest residence. If it is determined that the new equipment is resulting in an increase in noise that is greater than 1 dB at the nearest residence, Roseburg shall implement at the direction of the County additional noise-reducing treatments to limit the project-related increase in noise to 1 dB or less at the nearest residence. The potential treatments include but are not limited to adding additional mass to the building shell, installing acoustical absorption within the building, and installing enclosures around specific pieces of equipment.” (Boldface omitted.) “Leq” is defined as “[t]he average of sound energy occurring over a specified period. In effect, Leq is the steady-state sound level that in a stated period would contain the same acoustical energy as the time-varying sound that actually occurs during the same period.”

In its findings of fact in support of its resolution certifying the FEIR and approving the use permit for the Project, the Planning Commission found both that overall noise levels at some locations could exceed the nighttime noise standard of 40 dBA and that the increase in noise from the Project could exceed the 3.0 dBA threshold. However, the Planning Commission also found “[elimination of truck deliveries before 7:00 a.m. would cause the increase in noise to be less than 3 dB” and implementation of mitigation measure N-l would reduce the noise impact to less than significant.

Plaintiffs argue the foregoing findings are not supported by substantial evidence. They argue: “The success of a mitigation measure cannot be based upon complaints being received and subsequent tests. Some timid neighbors might suffer the lack of peace and quiet rather than be identified as opposing a major employer.” Plaintiffs provide no legal support for this argument and we are aware of none. On the contrary, there is every reason to believe a mitigation measure calling for further mitigation efforts in the event individuals directly impacted by a project complain of increased noise would go directly to the heart of the matter. At any rate, this “ ‘court’s task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. [Courts] have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so.’ ” (A Local & Regional Monitor v. City of Los Angeles (1993) 16 Cal.App.4th 630, 646 [20 Cal.Rptr.2d 228].) Our standard of review is the deferential substantial evidence test. (Id. at pp. 638-639.) In the present matter, plaintiffs have not shown substantial evidence is lacking for the designated mitigation measure.

Plaintiffs nevertheless argue that, in already noisy areas, a noise increase of less than 3.0 dBA may be significant, yet mitigation measure N-l would permit such an increase. Plaintiffs also assert mitigation measure N-l is too vague and provides no benefit to those living along the Project’s haul routes.

Regarding the 3.0 dBA threshold for noise increases, this is not so much an attack on the mitigation measure as an attack on the overall decision of the County to adopt a significance standard requiring such an increase. As explained earlier, the DEIR adopted a significance standard for the Project that requires both an increase of at least 3.0 dBA and an overall noise level above the applicable city or County standard. The DEIR indicates a noise increase of 3.0 dBA would be “barely perceptible.” Plaintiffs do not challenge this assessment, and this court is in no position to judge whether a noise increase of 3.0 dBA would be significant for purposes of CEQA analysis. This was a judgment call more properly left to the County.

Nor do we perceive anything vague in the mitigation measure. If a complaint is received, Roseburg must conduct measurements to determine if the threshold is exceeded at the indicated location. If so, changes must be made to bring the noise level below the threshold. Because the concern here is with the noise level, the fact the mitigation measure leaves it to Roseburg to decide how best to reduce the noise should be of no concern.

Finally, as to the fact the mitigation measure provides no benefit to those living along the Project’s haul routes, we are aware of no rule that a particular mitigation measure must address all possible impacts. Mitigation measure N-l is expressly designed to address noise impacts to properties adjacent to the Project site. As for plaintiffs’ complaints regarding noise along major haul routes, we address those later in this decision.

As for mitigation measure N-2, section E(4)(b) of plaintiffs’ opening brief is entitled “The County’s Findings Regarding Mitigation Measure N-2 are not Supported by Substantial Evidence.” However, in the body of this section, plaintiffs assert a plethora of other arguments and very little about mitigation measure N-2. They argue that, because homes near the Project site are already exposed to noise levels above 60 dB, an increase of even 1.0 dB might be considered significant. They further assert both mitigation measures considered together “would allow already beleaguered homes to be exposed to up to 4 dB of additional Project noise before any mitigation or noise restriction would occur.” They assert the DEIR “omitted the Messer noise study” and neither of the noise studies included measured noise at the closest homes. In addition, plaintiffs assert the EIR presented no data on the Project’s turbine generator noise and therefore presented no mitigation for such noise. According to plaintiffs, neither the EORM Report nor the ExperShare Report was prepared by an acoustical engineer, and the EORM Report merely assumed turbine noise from inside the building would be adequately muffled. Finally, plaintiffs assert the 3.0 dB threshold for noise increases, where homes are already exposed to excessive noise, is inconsistent with Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1123 [85 Cal.Rptr.3d 50] (Gray).

Appellate briefs must state each point raised under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B).) If not, the points raised need not be considered. (Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1346 [101 Cal.Rptr.2d 591]; Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1291 [286 Cal.Rptr. 198].) In this instance, some of the points plaintiffs assert in this section are dealt with in more detail elsewhere in their opening brief. We shall address them later. The remaining arguments are forfeited.

As for the one argument raised in the heading to section E(4)(b), plaintiffs assert simply that “there is a lack of evidence as to whether [mitigation measure N-2] will be effective and reduce any impacts to less than significant.” Plaintiffs provide no further detail to support this argument and, therefore, it too is forfeited.

C. Generator Noise Impacts

Plaintiffs contend the EIR failed to discuss and analyze noise from the Project’s turbine generator. In finding G.l in support of its resolution approving the EIR, the Planning Commission indicated: “At the time of the assessment conducted by EORM, Roseburg had not identified the other equipment specified to be used for this project including the steam turbine generator, condenser and related equipment. This equipment will be located within an enclosed structure (the existing boiler building) and noise-reducing housing and enclosures will be located around the turbine and other equipment located within the building. Because of the substantial noise reduction that will be provided by the building enclosure and housings within the building, the noise analysis assumed that there would be no meaningful contribution to noise levels at the nearest residences from this equipment.”

Plaintiffs argue the County’s failure to discuss and analyze noise from the generator was a prejudicial abuse of discretion. However, beyond merely asserting this to be so, plaintiffs provide no argument or supporting evidence or authorities. In particular, plaintiffs make no attempt to refute the finding that the housing around the generator will reduce the noise from the generator to insignificance. What plaintiffs do argue is that the County’s finding that nighttime noise from the Project would add less than 3.0 dB relies on noise level measurements submitted by ExperShare which, according to plaintiffs, were from homes located approximately 4,000 feet from the Project site. However, what this has to do with the alleged failure to include noise measurements from the generator is unclear. Plaintiffs’ argument regarding the lack of generator noise analysis is therefore forfeited.

D. Cumulative Noise Impacts in Weed

In addition to direct environmental effects, an EIR must discuss the “significant cumulative effects” of a proposed project. (Laurel Heights, supra, 47 Cal.3d at p. 394.) Significant cumulative effects include those that are “individually limited but cumulatively considerable.” (Guidelines, § 15065, subd. (a)(3).) “The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.” (Guidelines, § 15355, subd. (b).) However, “[t]he mere existence of significant cumulative impacts caused by other projects alone shall not constitute substantial evidence that the proposed project’s incremental effects are cumulatively considerable.” (Guidelines, § 15064, subd. (h)(4).)

“Assessment of a project’s cumulative impact on the environment is a critical aspect of the EIR.” (Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1025 [68 Cal.Rptr.2d 367].) “ ‘One of the most important environmental lessons evident from past experience is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant, assuming threatening dimensions only when considered in light of the other sources with which they interact.’ ” (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at p. 720, quoting Selmi, The Judicial Development of the California Environmental Quality Act (1984) 18 U.C. Davis L.Rev. 197, 244, fn. omitted.)

Where the cumulative impacts of a given project are not