Vision for the Sperry Landing Mixed Use Development Planned in 2008 on the South Vallejo Waterfront Site Now Proposed for a Cement Mill
Missing the Alternatives
VMT/Orcem Public Records Releases Highlight a Flawed Project Analysis
 
The California Environmental Quality Act mandates environmental impact assessments that consider a broad range of potential adverse impacts along with project alternatives and mitigations.  One required element to consider is the ‘No Project Alternative' - intended to establish a baseline for comparing a project's impacts to what happens if the project doesn’t go forward.  In practice this often becomes a throw away item - typically cautioning that if the project isn't implemented then nothing will happen and all the desirable project objectives won’t come to fruition.  That’s how the Environmental Impact Report for the VMT/Orcem project checks off the legal requirement as well.  But not so fast.  In this case there is much more to consider for the no project alternative than to just say that a marine terminal serving a slag cement plant won’t be built and the status quo would remain unchanged.

A whole lot has changed since consultants drafted and circulated that EIR for public and agency comment.  The objectives given for the major Vallejo Marine Terminal component of the project paint a glowing picture of a future marine terminal operation moving break bulk cargo, "as a key site of multi-modal and intermodal transportation and logistics," with a cascade of regional benefits predicted to flow from such an operation.  The slag cement milling plant appears as a relatively minor project component using a quarter of the marine terminal capacity  and occupying a smaller fraction of the site.  But it turns out that the coastal zone agency that permits port use for the Bay Area won’t issue a port permit for the VMT site - they would only allow industrial processing operations like the cement mill under the current Bay Plan.  Regional demand for the kind of break bulk cargo operation described in the VMT application and environmental report dried up a long time ago, and no break bulk cargo movement has been reported through any Bay port since 2006.
 
Left with a cement mill using only a fraction of the developed terminal capacity, the VMT applicants now face the need to bring in more industrial processing tenants like Orcem to be financially viable.  The second phase of the marine terminal project would have to be jettisoned because its only purpose was to serve the prohibited cargo handling function.  Instead of drafting and circulating an expensive new environmental impact report to reflect these fundamental and significant changes to the long term project operations and impacts, the applicants will push to finish and certify a final environmental report with a revised operations alternative.  They will try to retain as much of the draft report already circulated as they can, while focusing attention on the short term lessening of
impacts associated with dropping a major development phase - all in an effort to make the old draft EIR still appear adequate.
But there have been other significant changes beyond just the late discovery that three quarters of the described VMT project operation can't be permitted under the Bay Plan.   The No Project Alternative also requires a major revision to reflect the Propel Vallejo general plan update preferred scenario put on hold more than a year ago with a public promise by the City to consider changing the site zoning if the VMT application is denied.  That is now the actual no project alternative, not what was written in the old draft Environmental Impact Report.  It would directly address remaining significant project impacts like demolishing historic buildings, air quality impacts, traffic interruptions at rail crossings, and denying public access to the waterfront while blocking continuation of the Bay Trail.
Small Heading
Building on the Proposed Project Site
Here’s how the Executive Summary in the draft VMT/Orcem Environmental Impact Report  that circulated for public comment checks off the requirement to consider what happens if the project is not approved:  “Under the No Project Alternative, the project site would remain in its current condition.  No buildings would be demolished, and no construction of new buildings or structures would occur.  The existing wharf structures would also remain and there would be no dredging or filling of Mare Island Strait.  No new operations would be introduced and the project site would remain vacant.”  Sure sounds like a  no project scenario, all right.  Move along, nothing to see here?  But that isn't really how that story ends.

While the draft EIR was being written and circulated for public comment, the City was also engaged with the public and members of its commissions and agencies in a long overdue effort to update the Vallejo General Plan.  Professional planners, city staff, and a General Plan Working Group of citizens and commissioners worked for years to solicit public input and develop a preferred planning scenario for the document that serves to guide future development patterns in the City.  The resulting River and Bay City preferred scenario, broadly supported by participants, envisions an accessible waterfront and extension of the Bay Trail connecting the Cal State Maritime campus and south Vallejo with the downtown area.
Stretch of Waterfront on Site of Proposed Slag Cement Milling Plant
 
Implementing the shared vision for the waterfront as a public destination and prized environmental resource requires a change to the legacy Intensive Use zoning that would currently allow a VMT or Orcem to shut out the public for more than a half century.  The contemplated change in zoning would still permit a broad range of economic activity that would also preserve the significant historic resources on the site, and encourage development of public spaces accessible to everyone.  The previous owners of the VMT site had planned a mixed use development that met all those criteria in 2008, just before our financial system collapsed causing development projects to be abandoned nationwide.
A Missing Alternative -A mixed-use plan for the site of a proposed cement mill combining housing and retail, repurposing historic structures and featuring public waterfront open spaces and continuous public access.  A development like this 2008 design could fit into the Propel Vallejo preferred General Plan update scenario for the south waterfront that calls for a zoning change.
 
But when the time came to approve a preferred scenario map in 2015 that includes the southern waterfront, our City attorney’s office informed the General Plan Working Group that the zoning change shown for the site would have to wait for a decision on the VMT application.  The site would now appear as a grey undefined zone on the planning map.  Under protest that there was no legal basis for such a delay, the Working Group finally accepted a stipulation that the City will agree to revisit the implementation of the full preferred planning scenario and the proposed zoning change in the event the project is denied. 
 
The CEQA Guidelines address the current situation very specifically:  "If disapproval of the project under consideration would result in predictable actions by others, such as the proposal of some other project, this "no project" consequence should be discussed."  Our General Plan update is that other project, and the actions by others have been agreed to in advance and are entirely predictable.  Any revisions or rewrites intended to update the Environmental Impact Report must now also include a full discussion of the alternative planning vision developed with broad public support through the general plan update process that sits waiting in the wings in the event there is no project.  That is the current baseline for comparison - the preferred general plan update scenario is now the true No Project Alternative - not the 'nothing will happen' scenario from the obsolete draft EIR.
Among the issues to be resolved by our City Council as the lead agency before they could certify an environmental impact report for a project under CEQA is the question of  “whether there are other mitigation measures or alternatives that should be considered for the proposed project besides those identified in the Draft EIR."  Well, here’s one obvious alternative that has already been considered extensively within the general plan update process but ignored entirely in the environmental impact report.  Whether as part of the No Project Alternative or as a separate alternative in its own right, the preferred planning scenario developed through an open and participatory public process deserves to be considered as a viable alternative to the proposed project under the California Environmental Quality Act.
View of south Mare Island across the Strait from Proposed Project Site
Recognizing a threat to their already shaky project, the Orcem applicant tried to undermine the results of the general plan process and the preferred scenario in correspondence with the Planning Commission as late as December of 2016 - which we can now read as a result of public records requests.  He devotes a great deal of energy to establishing a timeline showing that the applicants began planning their project before the general plan update process started.  He might have saved himself all that effort.  Both processes ran in parallel, and the general plan update process, ponderous and slow as it is, won that race more than a year ago.  These guys can't find the finish line.  It's irrelevant at this point which process started first. 
 
He insinuates that individual members of the General Plan Working Group promoted the waterfront Bay Trail extension connecting south Vallejo with downtown as a means to sabotage his project.  He suggests that the public doesn’t know or care about the Bay Trail initiative and the goal to provide contiguous public access around the Bay.  Many of us recently noticed news stories about a large grant going to American Canyon for work on their section of the Trail, but I guess we don’t count.  Or maybe we’re all just out to get Orcem.
Point Pinole Regional Shoreline taken from the San Francisco Bay Trail by Kurt Schwabe.  The trail has expanded at a rapid pace since the project was launched in 1989, and is now more than two-thirds complete.
The VMT/Orcem consultant showed up at one of the last General Plan Working Group meetings in December of 2015 with a presentation aiming to undercut the case for any zoning change that would shut out heavy industry.  A member of the group reports that he “mounted a defense of the VMT/Orcem Project as the only allowed type of use based on current zoning as depicted in the Bay Plan.  He strongly asserted that attempting to secure a land use amendment was futile and a waste of taxpayer dollars. 
 
This incident exemplifies one big reason things have gone so wrong in the application process for this project.  The mess can be traced back in large part to the consistently terrible quality of the communication between the VMT development team and the Bay Conservation and Development Commission staff around issues of use consistency and the Bay Plan.  It rises to a level that begins to look like willful ignorance, and has cost the City time, effort, and resources we can ill afford.

In a Feb 2 2016 communication, the VMT consultant elaborates on his take-away insights from phone conversations with BCDC staff.  The contrast between his relayed version and clarifications of the actual situation coming directly from the BCDC is as startling as it is instructive.  He begins with some obvious ‘revelations’ - that general plan update amendments would need CEQA review, and that a change in zoning would result in inconsistency with the Bay Plan's water-related industry designation.  He then takes a flying leap and concludes: “The proposed “preferred alternative” would likely be found to have a significant and unavoidable environmental effect under CEQA because of the lack of alternative sites around the Bay for replacement of water related industry.”
He raises a valid point when he says that the contemplated change in the site use designation in the general plan preferred scenario would be inconsistent with the Bay Plan industrial use designation - just like that VMT port project he's been pitching for years now.  And then he proceeds to get the bottom line completely wrong, even after direct communication with BCDC staff.  There seems to be a pattern here.
In support of his dubious contention that there's a scarcity of sites for water-related industry, he shares that his BCDC phone contact “could not recall there ever before having been such a request to amend the Bay Plan to eliminate a Water-Related Industry Priority Use Site..., ”and further that "the last remotely similar proposal was at Collinsville in eastern Solano County where the Water-Related Industry designation in the Bay Plan was retained in order to accommodate the water-related dredge/fill operations now being carried out at Montezuma.” 
 
In the real world the specifics of the instance he cites here completely undermine his case.  At Montezuma the BCDC readily accommodated Solano County when they updated their general plan by dropping 2,400 acres from the water-related industry designation, retaining only 200 vacant acres along the Sacramento River against any future need.  The findings of the Commission in support of that decision plainly state that regional demand for such sites has fallen dramatically.  (See Forward Into the Past for details)
In a letter to the City, a BCDC Coastal Program Analyst shares the agency response offered to members of the Working Group and public who contacted BCDC staff.  Residents wanted to confirm the consultant’s dire assessments regarding the insurmountable difficulty and cost involved in a general plan update and rezoning.  In a result by now all too familiar in this process, the two perspectives are very different.  Here's the BCDC staff reaction: 
 
“We understand some statements were made at a public meeting by [consultant], representative for the Vallejo Marine Terminal/ORCEM project about the priority use designation in the San Francisco Bay Plan of the former General Mills site in the City of Vallejo as "water-related industry."  No BCDC personnel were at the meeting, but the members of the public claim that [consultant] gave the impression that BCDC would not be amenable to changing this designation in the Bay Plan and also speculated on the cost of any Bay Plan amendments.”
“The priority use designations in the Bay Plan were intended to reserve specific areas along the shoreline for particular Bay-related uses and usually reflect the local government's zoning for a particular site.  The designations can be changed through a Bay Plan amendment.  If the City decided to change the zoning or general plan so that the site could no longer be used for a water-related industrial use, BCDC would likely have to engage the City in a Bay Plan amendment process. As far as I know, no one from BCDC staff has had any discussion with the City about removing the water-related industry designation, but we would be happy to engage the City to discuss the planning process that would be required.”
Instead of the scary and expensive process portrayed by the VMT consultant, local
governments periodically engage in cooperative planning efforts and plan updates with the Bay Commission.  Solano county did it recently at Montezuma, Benecia back in the 1970‘s, and the City of Vallejo with the White Slough Special Plan in the 1990's.  This is an entirely feasible alternative to the project and no revised environmental review can fulfill the requirements of CEQA without considering it.  Whether spin or just another case of hearing only what you want to hear, the VMT consultant had it all wrong again, and yet succeeded in backing off the City and putting our general plan update process on hold.
Buildings on Sperry Mills Site
Public records requests also turned up a generous behind-the-scenes contribution the applicants have made to the City, which they're no doubt too modest to take credit for in public.   They helpfully provided an unsolicited legal document with all the findings they believe the Council should need to satisfactorily resolve this issue.  These are intended to function as the evidence-based conclusions that would be required in order to approve their project in spite of the remaining significant unavoidable environmental impacts - free of charge and ready to sign and date before a single hearing has been held!  Every bit as efficient as it is helpful.  Dated November 23, 2016, the draft Statement of Overriding Considerations embodies their strategy to gloss over the fact that long term project objectives and operations have changed significantly, that reasonably foreseeable and meaningful impacts have not been disclosed to the public, and that feasible project alternatives remain unconsidered.
The draft approval statement continues to talk about the VMT component as a cargo-handling port terminal with no hint of the known Bay Plan inconsistency:  "As an operational deep draft facility, the VMT terminal is anticipated to handle a wide range of commodities as documented in the EIR..."  Anticipated by who exactly?  Not the BCDC who would need to permit such activity, as they have made clear in direct written communication with the applicants and the City in response to that very language.  They've said there's no regional demand for such an operation.  For how long?  The only solace the BCDC staff has been able to offer the applicants is the prospect that the Commission may possibly allow some cargo handling for a temporary period of five to ten years while they hunt for more Orcems to bring in as tenants.
The presumptuous pre-approval document, so considerately provided by the applicant's team, attempts to distract attention from the implications of losing the heavily promoted VMT port operation by trotting out a "Modified Revised Operations Alternative" - no doubt produced by their Department of Redundancy Department.  They already laid out one Revised Operations Alternative in the draft EIR, with shorter trains and the like to make a show of reducing impacts.  Their latest modifications to the revisions drop the VMT development phase devoted exclusively to a cargo handling operation that BCDC won't permit, while characterizing it as just another way to lessen impacts.
View of the site from Mare Island
The California Environmental Quality Act requires that an Environmental Impact Report include:  "a statement of objectives sought by the proposed project."    It goes on to explain that a "clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary.  The statement of objectives should include the underlying purpose of the project."

The Guidelines Discussion for this section expands on the importance of accurate descriptive objectives:  "Subsection (b) emphasizes the importance of a clearly written statement of objectives.  Compatibility with project objectives is one of the criteria for selecting a reasonable range of project alternatives.  Clear project objectives simplify the selection process by providing a standard against which to measure possible alternatives."  For  VMT, those standards changed along with the objectives when most of the described project operation morphed into a temporary use long after the EIR was written and circulated.  The Guidelines also note: "The state court of appeal declared that an accurate, stable, finite project description is an essential element of an informative and legally sufficient EIR under CEQA."  The VMT project definition has been unstable and unworkable from the start, and the project has now become open-ended instead of finite with the need to recruit new industrial tenants in order to become financially viable.

That nexus between the VMT project objectives and the analysis of feasible alternatives left gaping holes in the original draft EIR when the basic project objectives subsequently changed.  Perhaps sensing peril, the applicant's elaborate statement of overriding considerations for approval makes a point of quoting the state guidelines indicating that: "An EIR shall describe a range of reasonable alternatives to the project, or to the location of 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..."  The statement notes in particular that an EIR need not consider an alternative whose implementation is remote or speculative.  But that evaluation of feasibility relies heavily on the need to attain basic objectives of the project, as the quote from the Guidelines indicates.  When objectives change so does the feasibility analysis of alternatives.

Here's one example.  Even though the Guidelines specifically mention alternative locations, developers can generally point out that they don’t own the alternate site and therefore such an option is not practical enough to require analysis as a project alternative.  The VMT/Orcem  draft EIR dismisses further consideration of alternative locations by citing the unique requirements needed for the VMT cargo shipping center and the Orcem project combined.  That was then.  Now all that’s left of the permanent project is the development of a marine terminal to service a water-related industrial slag cement processor and future unspecified water-related industrial tenants.  Orcem doesn’t own the property and would just be a lessee in any case. 
 
The BCDC noted in responding to the draft EIR that:  "The fill proposed for this project may have an alternative upland location and, therefore, may not meet the requirements of Section 66605 of the McAteer-Petris Act."  As the VMT consultant helpfully reminds us, there are more than two hundred vacant acres adjacent to deep water designated for water-related industry just up the Sacramento River at Collinsville that could be developed into a marine terminal and slag cement mill operation.  The area is sparsely populated and one aggregate facility already calls the area home. 
 
The draft EIR notes that Orcem needs access to rail for some materials and Collinsville has no rail spur at the site.  It is not clear how critical the need would be for Orcem to have a rail spur at the mill site.  The staff report says that rail "would be a third source for delivery of smaller consignments of gypsum, anhydrite, limestone, pozzolan, clinker, and portland cement."  It also mentions rail as well as tanker trucks for moving the finished products.
But the project objectives also include: "To follow the federal Short Sea Shipping Highway Initiative where possible by focusing on short sea shipping opportunities that move cargo by coastal and inland waterway barges, reducing both truck and rail environmental impacts."  The aggregate operation currently located at Collinsville relies on barge and truck traffic so it can't be dismissed out of hand.  Whether ultimately a workable option or not, most of the original justification for dismissing it as infeasible no longer applies and it would eliminate nearly all of the significant environmental impacts.  The DEIR discussion circulated for comment no longer serves to inform the public because the context has changed and relevant information is missing.

Here’s another instance.  Section 6 of the DEIR includes an extensive discussion of a Preservation Alternative that would save the historic structures on the site.  Demolition of these buildings instead of following state guidelines to preserve and re-use historic structures remains a significant environmental impact of the project.  Again, this alternative is dismissed as infeasible based entirely on the need for space to meet the now temporary VMT shipping center objectives.  The section concludes with a somewhat ironic observation in hindsight:  “While the VMT component could move forward with a different tenant for the 4.83-acre portion of the site proposed for use by Orcem, elimination of this key project component would eliminate a substantial portion of the shipping volume currently relied upon in determining the feasibility of the VMT operations.”  Now Orcem and the terminal itself are all that remains of the original long-term VMT component.

In the draft EIR, historic buildings would be demolished to make way for the Orcem component, which needed this particular five acres in order to leave room for all of VMT’s port activities.  Now that Orcem is the only component that can move forward at all on a permanent basis, that leaves plenty of room for the Preservation Alternative to become feasible.   There should be all kinds of space on the site to design a site plan alternative for Orcem that would keep the historic structures intact and eliminate a remaining significant impact.  Or are they proposing to demolish historic structures so they can lay down open piles of aggregate on the site for a temporary period of five to ten years?  You get the idea.  Objectives matter and can't just be changed after circulating a draft EIR without compromising the integrity and purpose of the document to inform the public about meaningful impacts and feasible alternatives, and allow public comment.
Sierra Club announces opposition at City Hall, September 2016 - rejecting the greenwash campaign
No Adjusted Amended Modified and Revised Operations Alternative can salvage this botched environmental review process at this point.  The draft EIR evaluated a very different project.  This is entirely a mess of the applicant's own creation and they deserve little in the way of sympathy over their lost investment in a process they've mishandled from the start.  The VMT principals made out just fine on the murky real estate transactions that enabled the premature project application in the first place, and heavy industry is far from the best option for our south Vallejo waterfront. 
 
Reacting to half-baked project proposals advanced and promoted by people who appear to suffer congenital listening and comprehension issues epitomizes the polar opposite of city planning and economic development.  The preferred general plan update scenario created with broad public participation requires consideration under very specific language in CEQA as a feasible impact-reducing project alternative, along with a range of additional feasible alternatives that remain to be considered.  The Council can't possibly sign off on those findings, so generously offered by the applicants without even being asked, which would certify that the record shows something different. 
 
Continuing with the process of finishing a final version of an EIR that can only fail to meet the either the purpose or legal requirements of an environmental review would be a waste of public resources.  The City Council as lead agency has an abundance of substantial evidence available in the public record to justify rejection of a badly flawed environmental document on a number of counts.  Changes to the project description and objectives have left an EIR riddled with holes that can't be covered up by wrapping it in a modified revised operations alternative after the fact.  The public has been misled, not informed by the CEQA process, and is never going to accept this project. 
CEQA Section 15270 provides that lead agencies can terminate the CEQA process simply by deciding to reject the project.   A 2009 appeals court decision in the case of Las Lomas vs the City of Los Angeles made it clear that they can do this at any point in the process.  LA terminated its environmental review of a proposed development project and rejected the project before the completion of a draft environmental impact report (EIR), after Las Lomas Land allegedly spent millions of dollars in an effort to comply with the city's requirements.  The court affirmed that starting the CEQA process does not require that it be carried to completion.  Our City staff has properly drafted a recommended resolution for the Planning Commission to deny the VMT/Orcem permits and pull the plug on this project without any further waste of time and resources.
 
It's long past time to put this debacle behind us.  We have too much work waiting on important issues like housing, creating living wage jobs, mental wellness services, protecting minority rights and the quality of our environment.  This botched application and environmental review process has already consumed far too much of our community's time and energy, and it's time to move on to more productive pursuits.