Plaintiffs Ask Court of Appeal to Reconsider on Dutra Ruling

The City of Petaluma and the coalition of plaintiffs filed March 14, 2014 a Petition for Rehearing of three issues ruled upon by the State Court of Appeal on March 7, 2014. (Decision attached)

The City of Petaluma and our Community have fought long and hard to preserve and protect our most popular park, our wetlands, our health, and our Gateway. These are keys to Petaluma’s future prosperity and enjoyment of this place. We will continue to make our case for the rejection of the Dutra Asphalt factory at the proposed location and defend our community against degradation by Dutra’s project.

California law provides a legal path for rehearing of issues at the Court of Appeal by appellants who strongly believe the panel of judges significantly erred in their ruling.

The plaintiffs are requesting that the Court of Appeal reconsider and correct their decisions on three issues:

1. The Court ruled that there is no remedy available for the County’s violation of the Brown Act, when the Board of Supervisors prohibited public testimony at the Dec. 14, 2010 final hearing during which the County approved the Dutra project, despite releasing hundreds of pages of new project information that very morning.

The Brown Act protects the core democratic principle that the public should be allowed to confront and petition their elected officials through public comment at public hearings. By claiming that there is no specific penalty for violating a specific provision of the Brown Act (Sec. 54954.3), the court has left the public with “a right without a remedy.”

We are asking the Court to deem the Board’s project approval actions to be null and void, to require a rehearing and revote, or provide other appropriate relief for the violations.

2. The Court allowed the County’s use of harmful air pollutant levels from Dutra’s prior plant operations to reduce the calculated total emissions for the new vacant project site more than ½ mile away, as if those emissions were already present on the new, vacant site.

There are zero pollution emissions at the proposed new location. The distorted calculations made the emissions and health impacts at Dutra’s new asphalt factory appear significantly less harmful to people, wildlife and our environment.

Despite our having submitted expert testimony describing these erroneous calculations during the County’s hearings, the Court overlooked that written testimony, claiming that we hadn’t submitted any comments on this point, and that we had not ‘exhausted’ the issue administratively.

We are asking the Court to correct their error, to reverse its decision, and allow full rehearing on these issues, which were not properly decided.

3. The Court ruled that the impacts of the asphalt factory’s polluted air emissions on workers’ health were adequately addressed by the County by merely citing OSHA regulations without any further analysis.

We presented testimony about the adverse and serious consequences to workers of exposures to hot asphalt’s “blue smoke” and particulates, including cancers, pulmonary and circulatory damages. The County instead claimed that simple compliance with OSHA standards would adequately mitigate impacts, and failed to calculate, analyze or address hazardous impacts to workers as required under law.

The Court further accepted the argument put forward by the County that worker health was not part of the “environment” under the California Environmental Quality Act (CEQA). Yet CEQA states that a project has significant impacts if it “will cause substantial adverse effects on human beings, either directly or indirectly.”

As a result, this issue was never briefed nor heard on its merits. We are asking the Court to allow a full rehearing on these issues.

For more information contact:

David Keller, Petaluma River Council, 707-338- 3833,

Joan Cooper, Friends of Shollenberger 415-516-3673,