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Mount Shasta Bioregional Ecology Center et al v. Siskiyou County Air Pollution Control District et al

September 26, 2012


(Super. Ct. No. SCCVPT090933)

The opinion of the court was delivered by: Hull , J.

Mt. Shasta Bioregional Ecol. Ctr v. Siskiyou Cty Air Pol Ctr. Bd. CA3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In February 2009, defendant Siskiyou County Air Pollution Control District (District) issued an Authority to Construct (ATC) permit to real party in interest Roseburg Forest Products Co. (Roseburg). The ATC permit authorizes Roseburg to expand its existing veneer manufacturing facility outside Weed, California, to enable the cogeneration of electricity for resale. Plaintiffs Mount Shasta Bioregional Ecology Center (MSBEC) and Weed Concerned Citizens (WCC) filed an administrative appeal of the District's decision claiming, among other things, the District failed to require Roseburg to incorporate the best available control technology (BACT) for reducing air pollution from the expanded facility. The District's Appeal Hearing Board (Hearing Board) conducted an evidentiary hearing but ultimately rejected the appeal and affirmed the permit authorization.

Plaintiffs initiated this mandamus action in the superior court seeking to overturn the decision of the Hearing Board. In addition to their BACT claim, plaintiffs raised various procedural challenges to the Hearing Board's proceedings. The trial court rejected plaintiffs' arguments and denied the petition.

Plaintiffs appeal. They contend, as they did in the trial court, they were denied due process in the proceedings before the Hearing Board because one member of the Hearing Board had a conflict of interest, the Hearing Board failed to provide them a copy of its hearing rules in a timely fashion, and only one of three Hearing Board members reviewed the findings of fact and conclusions of law before signing them. They further contend the Hearing Board erred in rejecting their claim that the District failed to require Roseburg to use the BACT. We conclude plaintiffs failed to establish any error in the administrative proceedings and affirm.

Facts and Proceedings

The facts are taken from the testimony presented at the administrative hearing and all documentary evidence properly included in the administrative record or otherwise conceded by the parties.

In 1982, Roseburg purchased an existing wood veneer manufacturing facility outside the City of Weed in Siskiyou County. Operations at the facility involve stripping the bark from logs, using the bark for fuel to run the equipment on the premises, and converting the remaining wood into sheets of veneer to be shipped elsewhere for fabrication into plywood.

In August 2006, Roseburg submitted an application to the District to expand the facility in order to take advantage of an abundance of wood fuel in the area for generating electricity for resale. The proposed project consists of modifying the existing boiler on the premises in order to produce super-heated steam, which steam would then be used to run a turbine for the production of electricity. Because this process would increase gas emissions from the facility, Roseburg was required to obtain a permit from the District.

Of the various gases produced by the expanded facility, the only one that would increase above the applicable threshold of significance for Siskiyou County (County) was nitrogen oxide (NOx). This increase triggered a county requirement that Roseburg utilize the BACT to reduce NOx emissions.

Roseburg chose selective noncatalytic reduction (SNCR) technology as the BACT for the project to reduce emissions by 35 percent. Chad Darby, an air quality consultant hired by Roseburg for the project, described SNCR as follows: SNCR "is where you inject either urea or ammonia directly into the firebox. With the fireboxes at the temperature that this boiler is, which I believe is between 1600 and 2,000 degrees farenheit, the urea will be converted into ammonia at that temperature. The ammonia reacts with [NOx]. [¶] So at the back end, the [NOx] emissions are reduced and diatomic nitrogen and oxygen, which are prevalent in the atmosphere, is what you get out of the process."

Roseburg also considered using selective catalytic reduction (SCR) technology, which utilizes a catalyst to allow ammonia to react with and neutralize NOx at lower temperatures. However, this was ruled out for various reasons, including the likelihood that the catalyst would become plugged because of the nature of the fuel being used in the boiler.

Another technology considered by Roseburg was regenerative selective catalytic reduction (RSCR), which involves adding a selective catalytic reduction unit to the back end of the exhaust system. However, this would require additional construction and the burning of additional fuel to bring the temperature of the emissions back up to a level required for reaction with the catalyst. This too was rejected because of the potential for plugging up the catalyst.

On February 24, 2009, the District approved the project with the SNCR technology and issued the ATC permit. Plaintiffs filed an administrative appeal of the District's decision. The hearing on plaintiffs' appeal was initially scheduled for April 13, but was postponed until May 6 on stipulation of the parties. Although Hearing Board rules require that all written evidence be submitted at least 10 days before the hearing, plaintiffs were given until May 1 to submit evidence based on their claim they had not received a copy of the Appeal Hearing Procedures of the Hearing Board until April 24.

At the time plaintiffs filed their administrative appeal, the Hearing Board had only two of five authorized members, including Hearing Board Chairman James Gubetta. A third member was appointed in April. Because Gubetta lived within 300 feet of Roseburg's facility, yet his participation was necessary to constitute a quorum for the Hearing Board, he sought the advice of the California Fair Political Practices Commission (FPPC). The FPPC ultimately advised Gubetta he could participate in the appeal under the circumstances.

The Hearing Board thereafter conducted an evidentiary hearing on plaintiffs' appeal, with Gubetta participating, and affirmed the decision of the District to issue the ATC permit.

Plaintiffs initiated the instant proceedings in the superior court against both the District and the Siskiyou County Board of Supervisors (Board). Their petition alleges five claims: (1) violation of the District's own rules regarding the BACT; (2) failure to give proper notice of a resumption of the appeal hearing; (3) violation of the Government Code in permitting Chairman Gubetta to participate in the process; (4) violation of procedural due process regarding the introduction of evidence; and (5) abuse of discretion in refusing to permit late submittal of evidence.

The trial court rejected each claim and denied the petition.



Standard of Review

In administrative mandamus proceedings, the applicable standard of review depends on the nature of the claims raised. As a general matter, the courts inquire into whether the agency "has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Code Civ. Proc., § 1094.5, subd. (b).) Abuse of discretion occurs where the agency "has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Ibid.)

Plaintiffs raise three primary issues on appeal. They argue the proceedings before the Hearing Board were defective both (1) because a participating board member had a conflict of interest, and (2) because plaintiffs were denied due process in the way the proceedings were conducted. They further argue (3) the Hearing Board failed to require Roseburg to use the BACT on the project.

The procedural issues involve mixed questions of law and fact subject to the independent judgment of the trial court. This court reviews the determinations of the trial court on any preliminary factual questions to determine if they are supported by substantial evidence and exercises independent judgment on the ultimate questions of law. (Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 87.) On the substantive issue of whether the Hearing Board required Roseburg to use the BACT, our task is the same as that of the trial court. We review the decision of the Hearing Board to determine if it is based on substantial evidence. (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1583.) We must uphold the Hearing Board's decision "unless the review of the entire record shows it is so lacking in evidentiary support as to render it unreasonable. (Ibid.) However, "[w]hile the [Hearing Board's] findings on questions of fact will be sustained if supported by substantial evidence on the record considered as a whole, yet, ...

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