CBE Lawsuit Vs Tesoro and AQMD
CBE Lawsuit Vs Tesoro and AQMD
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and reCurn.
Thank you.
1 Suma Peesapati (State Bar No. 203701)
COMMUNITIES FOR A BETTER ENVIRONMENT
2 P.O. Box 454
Laguna Beach, CA 92652-0454
3 Tel: 415-336-1891 CONFORMED COPY
OF ORIGINAL FILED
Los Angeles Superior Court
4 Doug Carstens (State Bar No. 193439)
Michelle Black (State Bar No. 261962) JUN 14 2011
5 CHATTEN-BROWN & CARSTENS
2200 Pacific Coast Highway, Suite 318 Sherd R. Caner, r.xecuuve unIcer/clerk
6 Hermosa Beach, CA 90245 By Shauriya Bolden, Deputy
Tel: 310-798-2400; Fax 310-798-2402
7
Gladys Lim6n (SBN 228773)
8 COMMUNITIES FOR A BETTER ENVIRONMENT
6325 Pacific Blvd., Suite 300
9 Huntington Park, CA 90255
Tel: (323) 826-9771
10
Attorneys for Petitioner and Plaintiff
11 COMMUNITIES FOR A BETTER ENVIRONMENT
12
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 IN AND FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT
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15 COMMUNITIES FOR A BETTER Case No. BS 1 6 9 8 4 1
ENVIRONMENT, a California Nonprofit
16 Corporation,
VERIFIED PETITION FOR WRIT OF
17 Petitioner and Plaintiff, MANDATE AND COMPLAINT FOR
DECLARATORY AND INJUNCTIVE
18 vs. RELIEF
27 "Petitioner"), brings this action on its own behalf, on behalf of its members, on behalf of the general
19 3. The EIR is equally evasive on the question of crude quality. The EIR fails to disclose that the
20 Project enacts Tesoro's West Coast business goal of switching to extreme and unconventional crude
21 oils, including the highly volatile, fracked crude oil from the North Dakotan Bakken shale. The
22 EIR's evasive Project Description, in turn, infects the EIR's entire impact analysis and mitigation
23 plan. It is undeniable that larger volumes of crude oil mean more pollution exposure to local
24 residents, including CBE's members. And, the switch to low-quality crude only exacerbates public
25 health impacts, not to mention accident risk, including the well-publicized risk of fire and vapor
26 cloud explosions. By failing to disclose these elements of the Project's true scope, the EIR fails to
27 disclose the Project's true impacts and further fails to mitigate those impacts, in violation of CEQA's
28 bedrock precepts.
25 their health and safety, as well as conservation, environmental, aesthetic, and economic interests in
26 Los Angeles. CBE's members who live and work in Los Angeles have a right to, and a beneficial
27 interest in, the South Coast Air Quality Management District's performance of its duties under
17 The decision-making body of the Air District is the Governing Board, which is a thirteen-
18 member Board made up of elected officials and officials appointed by elected officials. (Health &
20 12. CBE currently does not know the true names of Does 1 through 20 inclusive, and therefore
21 name them by such fictitious names. CBE will seek leave from the Court to amend this petition to
22 reflect the true names and capacities of Does 1 through 20 inclusive once they have been
23 ascertained.
24 13. Real Party in Interest and Defendant Tesoro Refining and Marketing Company LLC
26 existing under the laws of the State of Delaware, and headquartered in San Antonio, Texas. Tesoro
27 conducts extensive refining and marketing business activity in California, including running its Los
28 Angeles Refinery. The Los Angeles Refinery, as contemplated by the Project, consists of two linked
17 mandamus under California Rules of Civil Procedure 1085 and 1094.5. The interests CBE seeks
18 to further in this action, namely, the protection and improvement of air quality, are within the
19 purposes and goals of the organization. CBE brings this action on behalf of itself, its members,
20 specifically those residing in close proximity to the proposed Project area, and on behalf of the
21 general public.
22 18. By initiating this action, CBE seeks to protect the health, welfare, and economic interests of
23 its members and the general public and to enforce a public duty owed to them by the Air District.
24 19. Venue is proper in the County of Los Angeles under California Code of Civil Procedure
25 section 395. The action is filed in the Los Angeles Superior Court Central Division in accordance
26 with the Local Rules of the Los Angeles County Superior Court that require all CEQA actions to be
27 filed in this Division.
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22 27. Currently, the City of Carson is home to two refinery facilities: the Tesoro refinery and the
24 28. Wilmington, a part of the City of Los Angeles that is directly adjacent to the City of Carson,
25 is home to three additional refineries, including: (1) the Tesoro Wilmington refinery, located at
26 2101 East Pacific Coast Highway; (2) the Valero Wilmington refinery, located at 2402 East
27 Anaheim in Wilmington, California; and (3) the Phillips 66 Los Angeles refinery.
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18 32. In addition to impacts associated with the Project, there are a number of other proposed
19 projects that will impact the same area, the same residential neighborhoods and the same
20 communities.
21 33. For decades, CBE, its members, and allied organizations have expressed concerns with the
24 The True Scope of the Project and its Undisclosed Significant Environmental Impacts
25 34. The Environmental Impact Report's Project Description contains an unduly narrow set of
26 objectives that are limited to the integration of the Carson and Wilmington Refinery operations
27 through process modifications. The Project Description states that the Project will "improv[e]
28 process efficiency," "[r]ecover[]and upgrad[e] distillate range material from FCCU feeds[,]"
17 and effectuate Tesoro's business plan to switch its crude oil stock at its West Coast refineries. The
18 EIR's stultified Project Description obscures this key, and far more dangerous, Project purpose.
19 37. The EIR also claims that the Project will have a "small impact on crude oil and feedstock
20 throughput . . . capability[,] increase[ing] approximately two percent or 6,000 barrels per day
21 (bbl/day) as a result of the proposed project." Yet Tesoro's statements to the U,S. Securities and
22 Exchange Commission indicate that Project could feed a much greater increase in Refinery
23 throughputi.e. the volume of crude being processed by the Refinery complex at any given time.
24 The DEIR's failure to disclosure the true scope of the Project's potential to increase Refinery
26 38. The Air District prepared and released a Notice of Preparation and Initial Study ("NOP/IS")
27 to initially identify potentially significant, adverse environmental impacts associated with the
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11 42. CBE incorporates herein by reference the allegations contained in the foregoing paragraphs.
12 43. Under CEQA, a lead agency may not file a Notice of Determination before deciding to carry
13 out or approve a project.
14 44. Section 15094 of the CEQA Guidelines states: "(a) The lead agency shall file a Notice of
15 Determination within five working days after deciding to carry out or approve the project." (Cal.
16 Code Regs., tit. 14, 15094(a), [emphasis added].)
17 45. As of the date of this petition and complaint, the Air District has not decided to carry out or
18 approve the Project.
19 46. The Air District's May 15, 2017 filing of a Notice of Determination with the Los Angeles
20 County Clerk constituted a prejudicial abuse of discretion, and/or a failure to proceed in the manner
21 required by law.
22 B. FAILURE TO PROVIDE AN ACCURATE PROJECT DESCRIPTION
23 47. CBE incorporates herein by reference the allegations contained in the foregoing paragraphs.
24
48. The primary goal of CEQA is to "[e]nsure that the long-term protection of the environment . .
25
. shall be the guiding criterion in public decisions." (Pub. Res. Code 21001(d).)
26
49. To this end, CEQA requires that the EIR include an accurate project description, and that the
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nature and objective of a project be fully disclosed and fairly evaluated in the EIR.
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18 53. The specific chemicals and their concentrations in the Project's modified crude blend are
19 required to evaluate impacts. This type of information is reported in a crude assay or "fingerprint" of
20 the oil. Crude assays are available to Tesoro, and are routinely collected by oil companies to evaluate
21 the desirability of specific crude oils. Yet, this information was excluded from the EIR, foreclosing
22 meaningful public review of environmental impacts. In particular, the Project Description should
23 have disclosed whether the Project would change any of the following characteristics of the
26 ethyl benzene, and xylene (called BTEX compounds), which can be present in
27 high concentrations in volatile Bakken crude oil;
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17 56. The Project Description further fails to disclose the true scale of the Project's increased
18 throughput, or the increased volume of crude that the Refinery will be able to process at any given
19 time. The Draft EIR claims that the Project will increase Refinery throughput by merely 6,000
20 barrels of crude oil per day beyond the Refinery's pre-Project throughput level of 363,000 barrels
21 per day. Yet, Tesoro's December 2015 Form 10-K, which it submitted to the U.S. Securities and
22 Exchange Commission, states that the Refinery's pre-Project throughput capacity was 380,000
23 barrels per day. The EIR's failure to provide a stable and accurate view of the Refinery's throughput
25 57. Moreover, the discrepancy shows that the Project's true increase to Refinery throughput
26 and/or operations could be much higher than that disclosed by the EIR, thus infecting the EIR's
27 entire impact analysis.
28 Unexplained Increase In the Amount Crude Oil Released From Storage
17 significant impacts of the Project. These defects constitute a prejudicial abuse of discretion, a failure
18 to proceed in the manner required by law, and lack the support of substantial evidence.
19 C. ILLEGAL PIECEMEALING
20 60. CBE incorporates herein by reference the allegations contained in the foregoing paragraphs.
21 61. In determining whether a project may have a significant effect on the environment, the lead
22 agency must consider "all phases of project planning, implementation, and operation," including
23 phases planned for future implementation. (CEQA Guidelines 15063(a)(1); Laurel Heights
24 Improvement Assn. v. Regents of Univ. of California (1988) 47 Ca1.3d 376, 396, as modified on
25 denial of reh'g (Jan. 26, 1989).) Thus, even if a project requires multiple discretionary approvals, the
26 environmental analysis must analyze the impacts of the entire project, not merely the approval at
27 issue. (CEQA Guidelines 15378(c).)
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16 Environmental Impact Statement for the VET notes that the VET is intended to serve the growing
17 demand of West Coast refineries for mid-continent crude oil amidst the declining availability of the
18 more expensive Californian and Alaskan oils that have historically been used by Tesoro's Los
19 Angeles Refinery.
20 65. The Project's dependence on, and interrelationship with, the Tesoro VET is admitted in
21 Tesoro's investor reports, which state that the Project's purpose is to allow Tesoro to remain
22 competitive by increasing processing of unconventional crude oils from the North American mid-
23 continent at its Los Angeles Refinery through use of the Tesoro Savage Terminal. The May
24 Technical Report also includes many other places where the Project relies on the Tesoro VET. The
25 impact of the increased greenhouse gas emissions from the VET piece of the Project's crude oil
26 lifecycle affects California's environment.
27 I Tesoro Savage Draft Environmental Impact Report, Executive Summary (ES-2), available at:
http://www.efsec.wa.gov/Tesoro%20Savage/SEPA%20-
28 %20DEIS/DEIS%20Chapters/DEIS%20Ch%200b%20Exec Surnmary.pdf. (Last visited on June 13, 2017.)
17 defines baseline as the "physical environmental conditions in the vicinity of the project, as they exist
19 added].) The EIR fails to provide a stable or proper baseline for the volume or quality of pre-Project
21 70. As for crude volume, the EIR illegally evades disclosure of the amount of crude oil that will
22 be delivered to, and processed by, the Refinery once the Project is implemented. The EIR's failure to
23 disclose basic baseline information on crude oil shipments, storage tank throughput and Refinery
24 throughput evades disclosure of the Project's true scope and environmental impacts. The EIR
25 initially fails to disclose any baseline and post-Project throughput and capacity information for the
26 marine terminals that serve the Project, even though the Project significantly increases the unloading
27 rate of crude oil at these terminals. The EIR then fails to provide a clear or accurate baseline
28 description of crude oil storage tank throughput, despite the fact that the Project will double the
17 73. Next, the EIR's air emissions baseline is flawed because it improperly includes emissions
18 from the Wilmington Fluid Catalytic Cracking Unit ("FCCU"), and thereby artificially inflates the
19 air quality baseline. Because the FCCU shutdown was a condition of approval prior to, and
20 independent from, this Project, the EIR's air quality baseline should have reflected the
22 74. The EIR also improperly inflates the baseline(s) in its air quality analysis by including
24 75. The EIR next inflates the baseline for assessing fluid catalytic cracking and flare emissions,
25 as well as emissions of sulfur dioxide, particulate matter, volatile organic compounds, and
26 greenhouse gases by failing to analyze the Refinery's actual process rates. Actual process rates
27 provide a transparent view of the Refinery current crude quantity and quality, thus forcing the
28 required disclosure of the Project' potential to increase those process rates and accompanying
18 78. The EIR also failed to provide a proper baseline with regard to this Project's impact on
19 global warming. Instead of providing a transparent baseline for measuring the Project's greenhouse
20 gas emissions, it simply makes conclusions about the amount of greenhouse gases emitted.
21 79. Without proper baselines for the above-stated aspects of Refinery operations, the EIR lacks
22 support for its significance determinations. The Air District's failure to provide legal and/or accurate
23 baselines for purposes of measuring Project impacts constitutes a prejudicial abuse of discretion, a
24 failure to proceed in the manner required by law. The Air District's above-mentioned baseline
26
E. FAILURE TO DISCLOSE THE PROJECT'S SIGNIFICANT AND POTENTIALLY
27 SIGNIFICANT ENVIRONMENTAL IMPACTS.
28 80. CBE incorporates herein by reference the allegations contained in the foregoing paragraphs.
18 true nitrogen oxides ("NOx") emissions. The EIR improperly relied on entirely unenforceable,
19 "early," compliance projects under the Air District's RECLAIM program to claim emission
20 reductions for NOx. Yet, Tesoro could later sell the credits it generates from early compliance, or
21 even use the credits to offset other emissions increases, which would provide no pollution benefit to
22 the region. In short, Tesoro must surrender its NOx pollution credits to claim those credits as
24 83. Further, the EIR misleads decision-makers and the public in assuming that the shutdown
25 from the Wilmington Fluid Catalytic Cracking Unit ("FCCU") shutdown will achieve emissions
26 reductions. In fact, Tesoro plans to keep 491.63 of NOx pollution credits to increase NOx emissions
27 in the future. The above analytical deficiencies and misuse of pollution credits improperly evade
28 disclosure of the Project's true emissions of VOC and NOx pollution, thus violating CEQA.
17 the Refinery's crude oil storage tanks and the Refinery itself (throughput).
18 87. The EIR also fails to disclose the Project's significant climate change impacts, claiming
19 instead that the Project will result in reductions of GHG emissions. As a threshold matter, the EIR
20 fails to identify the Project's greenhouse gas emissions as direct and indirect impacts, and instead
21 relegates its analysis of this issue to a purely cumulative impact analysis. This analytical' approach is
23 88. As for direct operational emissions, the EIR significantly underestimated GHG emissions
24 from the Project's modifications to key fired sources, including Refinery heaters, furnaces and
25 boilers.
26 89. Moreover, and contrary to the Air District's own mandate, the EIR fails to analyze the
27 Project's lifecycle GHG emissions. In adopting an interim 10,000 metric ton per year interim
28 significance threshold for GHGs, the Air District's Governing Board mandated that in "determining
17 92. Bakken crude oil can cause transfer problems in marine vessels and refinery storage tanks
18 due to its potentially high paraffinic content. To address this waxiness, multiple chemical dispersants
19 would be needed for smooth transfer and realization of full throughput. The potential for use of
20 chemical dispersants should have been identified in the EIR to assess the impacts and hazards of
21 their use. Waxy crude content can also cause unwanted "coking" inside refinery vessels, thereby
23 93. Bakken crude is also extremely volatile due to its large concentration of natural gas liquids,
24 which include methane, propane, butane, ethane, and pentane. These compounds are susceptible to
25 volatize, bum, or explode when they come into contact with sparks in an accident, and can easily
26 form fireballs and vapor cloud explosions, known as boiling liquid expanding vapor explosions
27 ("BLEVES"). Substantial evidence in the record thus shows that the Project's switch to Bakken
28 crude significantly increases the risk of these types of explosions. These explosions can be fatal, as
17 refinery workers would be the most exposed to risk. According to substantial evidence in the record,
18 any person located between the accident site and the reported impact distance would experience a
19 significant impact. At a heat flux of 5 kW/m2, a 10% injury would be experienced, which is
20 significant. The EIR's failure to analyze the hazard from fire to refinery workers (onsite receptors)
22 95. The EIR further underestimates the risk of fire at the Project's crude oil storage tanks.
23 Substantial evidence in the administrative record shows that fire hazards from the new crude oil
24 tanks would be significant. In an accident, the amount of crude oil involved would increase, because
25 of the Project's increased storage capacities and throughput. If an accident were to occur while the
26 tanks were being filled, more than just the capacity of one tank could be spilled. The EIR, in its
27 worst-case scenario analysis, however, only considers the maximum capacity of each tank, and thus,
28 fails to evaluate the fire risks of the Project's total increase in crude oil storage, particularly due to
17 98. The EIR further failed to consider the fire risks associated with pipeline accidents, ship
18 accidents, and loading and unloading of liquefied petroleum gas ("LPG"), and further failed to
19 properly consider the smoke and inhalation risks to human beings in the event of an accident.
20 99. Substantial evidence in the administrative record also shows that the EIR failed to properly
21 account for marine vessel emissions, including crude oil tanker ship emissions, which could increase
23 100. The EIR further failed to disclose the Project's health risk (cancer, acute, and chronic)
24 information by pollutant. The significantly hindered the public's ability to review the reasonableness
26 101. Importantly, according to the Air District's own FluxSense study, which the Air District
27 released before finalizing the EIR, the Refinery's VOC emissions, which include vapor emissions
28 released from storage tanks and leaky Refinery components, and include carcinogens such as
17 evidence in the record shows that the corrected benzene emissions from the Project will result in
18 significant cancer risks, reaching as high as 55 in one million, in contrast to the 3.7 in one million
19 cancer risk reported by the EIR. The Air District's significance threshold for cancer risk is 10 in one
20 million.
21 104. The Air District's certification of the EIR for the Project without fully analyzing the Project's
22 significant environmental and public health impacts constitutes a prejudicial abuse of discretion,
23 fails to proceed in the manner required by law, and does not have the support of substantial
24 evidence.
25
F. FAILURE TO CONSIDER AND DISCLOSE SIGNIFICANT CUMULATIVE
26 ENVIRONMENTAL IMPACTS.
27 105. CBE incorporates herein by reference the allegations contained in the foregoing
28 paragraphs.
17 relies on false assumptions. For instance, the DEIR incorrectly assumed that the Southern
18 California International Gateway ("SCIG") Project will result in major emissions reductions in
19 the project area. The SCIG project is a near-dock intermodal railyard proposed to be built in
20 Los Angeles adjacent to west Long Beach. The Air District successfully challenged that SCIG
21 project in Los Angeles Superior Court by arguing, among other things, that the EIR for that
22 project could not assume that operation of the SCIG' s railyard would necessarily reduce
23 operations and pollution at another already existing railyard. The Air District further prevailed
24 in its challenge to that EIR's emissions reductions estimates for the SCIG project. Having
25 prevailed in its challenge to that project's emission reduction estimates, the Air District cannot
26 rely on those same emissions reductions here. Although the FEIR conceded the error, and
27 removed the erroneous SCIG-related pollution reduction from its analysis, the FEIR
28 surprisingly failed to change its ultimate conclusion of no significant cumulative
17 proceed in the manner required by law. That action further lacks the support of substantial evidence.
20 A. For a writ of mandate or peremptory writ that is issued under the seal of this Court
23 2. set aside and withdraw any and all approvals of the Project;
24 3. refrain from granting any approvals for the Project unless and until the Air District
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Suma Peesapati (State Bar No. 203701)
6 COMMUNITIES FOR A BETTER ENVIRONMENT
P.O. Box 454
7 Laguna Beach, CA 92652-0454
Tel: 415-336-1891
8
Doug Carstens (State Bar No. 193439)
9 Michelle Black (State Bar No. 261962)
CHATTEN-BROWN & CARSTENS
10 2200 Pacific Coast Highway, Suite 318
Hermosa Beach, CA 90245
11 Tel: 310-798-2400; Fax 310-798-2402
6 above Petition for Writ of Mandate and Complaint and know the contents. I am informed
7 and believe that the matters in this petition and complaint are true and on that ground allege
8 that the matters stated in the petition and complaint are true.
9
10 I declare under penalty of perjury of the laws of California that the foregoing is true
and correct. Executed this Thirteenth day of June, 2017, in Huntington Park, Los Angeles
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County, California.
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17 Danyl Molina Sanniento
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EXHIBIT A
Hermosa Beach Office
Phone: (310) 798-2400
Fax: (310) 798-2402
BC
Chatten-Brown & Carstens LLP
Douglas P. Carstens
Email Address:
[email protected]
San Diego Office 2200 Pacific Coast Highway, Suite 318
Phone: (858) 999-0070 Hermosa Beach, CA 90254 Direct Dial:
Phone: (619) 940-4522 www.cbcearthlaw.com 310-798-2400 Ext. 1
By U.S. Mail
California Attorney General
300 South Spring Street, Ste. 1700
Los Angeles, CA 90013
Please find enclosed a copy of the Petition for Writ of Mandate filed to challenge
South Coast Air Quality Management District's approval of permits for the Tesoro
Refinery Project in the City of Carson.
This Petition is being provided pursuant to the notice provisions of the Public
Resources Code. Please contact me if you have any questions.
Sincerely,
Douglas P. Carstens
Enclosure
Page 2 of 2
PROOF OF SERVICE
I declare that I am employed in the office of a member of the bar of this court
whose direction the service was made. I declare under penalty of perjury under the laws
of the State of California that the above is true and correct. Executed on June 14, 2017, at
Hermosa Beach, California 90254.
9Th
Cynthia Kellman
SERVICE LIST
Michael B. O'Kelly,
Agent for Service of Process
South Coast Air Quality Management District
21865 Copley Drive
Diamond Bar, CA 91765
Please take notice that Communities For A Better Environment plans to file a
Petition for Writ of Mandate challenging the South Coast Air Quality Management
District's approval of permits for the Tesoro Refinery Project in the City of Carson.
Sincerely,
Douglas P. Carstens
Page 2 of 2
PROOF OF SERVICE
I declare that I am employed in the office of a member of the bar of this court
whose direction the service was made. I declare under penalty of perjury under the laws
of the State of California that the above is true and correct. Executed on June 13, 2017, at
Hermosa Beach, California 90254.
Cynthia Keliman
SERVICE LIST
Michael B. O'Kelly,
Agent for Service of Process
South Coast Air Quality Management District
21865 Copley Drive
Diamond Bar, CA 91765
EXHIBIT C
1 Suma Peesapati (State Bar No. 203701)
COMMUNITIES FOR A BETTER ENVIRONMENT
P.O. Box 454
Laguna Beach, CA 92652-0454
3 Tel: 415-336-1891
4 Douglas P. Carstens (State Bar No. 193439)
Michelle Black (State Bar No. 261962)
5 CHATTEN-BROWN & CARSTENS
2200 Pacific Coast Highway, Ste. 318
6 Hermosa Beach, CA 90254
Tel: 310-798-2400
7
Gladys Limon (SBN 228773)
8 COMMUNITIES FOR A BETTER ENVIRONMENT
6325 Pacific Blvd., Suite 300
9 Huntington Park, CA 90255
Tel: (323) 826-9771
10
Attorneys for Petitioner and Plaintiff
11 COMMUNITIES FOR A BETTER ENVIRONMENT
12
13 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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16
COMMUNITIES FOR A BETTER CASE NO:
17 ENVIRONMENT, a California Nonprofit
Corporation,
18 NOTICE OF ELECTION TO
Petitioner and Plaintiff, PREPARE ADMINISTRATIVE
19 RECORD
vs.
20
SOUTH COAST AIR QUALITY [California Environmental Quality Act
21 MANAGEMENT DISTRICT, a public (CEQA): California Code of Civil
agency, AND DOES 1 through 20 Procedure 1085,1094.5; California
22 inclusive, Public Resources Code 21000 et seq.,
21168, 21168.5]
23
Respondents and Defendants;
24
TESORO, a Delaware Corporation,
25
Real Party in Interest and
26 Defendant.
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Notice of Election
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD;
PLEASE TAKE NOTICE:
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Pursuant to Public Resources Code section 21167.6, Petitioner Communities for
3
Better Environment hereby elects to prepare the administrative record in this matter.
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6 Dated: June /g , 2017 Respectfully Submitted,
7 CHATTEN-BROWN & CARSTENS LLP
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By:
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Douglas P. Carstens
11 Attorneys for Petitioner
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Notice of Election