Certified for Publication 12/23/19
APPEAL
from a judgment of the Superior Court of Mono County No.
CV140075, Stan Eller, Judge. Affirmed and reversed in part.
Lozeau
Drury, Michael R. Lozeau, Richard T. Drury and Rebecca L.
Davis for Plaintiffs and Appellants Russel Covington et al.
Morrison & Foerster, Peter Hsiao, Miriam A. Vogel; King
and Spalding, Peter Hsiao for Defendants and Respondents
Great Basin Unified Air Pollution Control District et al.
Liebersbach, Mohun, Carney & Reed, James S. Reed, Richard
W. Liebersbach, R. Mark Carney; Leibersbach, Carney &
Reed and Richard Liebersbach for Real Parties in Interest and
Respondents ORNI 50 LLC et al.
BLEASE, J.
This
case presents a California Environmental Quality Act (CEQA)
challenge to the approval of a geothermal power plant to be
located on federal land in Mono County. Petitioners challenge
the adequacy of the Environmental Impact Report (EIR) to
accurately estimate the amount of Reactive Organic Gas (ROG)
emissions and to adopt all feasible mitigation measures.
Petitioners also assert that the Great Basin Unified Air
Pollution Control District (District) was not the proper lead
agency to undertake preparation of the EIR.
We
shall conclude that the District was the proper lead agency,
and that the permit limiting the daily ROG emissions is
sufficient evidence of the amount of the emissions. However,
we conclude the District did not adequately analyze whether
the additional mitigation measures proposed by petitioners
were feasible to limit ROG emissions. We shall reverse the
part of the judgment relating to the District's
consideration of the proposed mitigation measures, and shall
otherwise affirm the judgment of the trial court.
FACTUAL
AND PROCEDURAL BACKGROUND
This
case challenges the District's certification of an EIR
for the Casa Diablo IV Geothermal Development Project
(Project), which is proposed by real parties in interest ORNI
50 LLC, Ormat Nevada, Inc., and Ormat Technologies, Inc.
(collectively Ormat). Petitioners are Laborers'
International Union of North America Local Union No. 783
(LIUNA) and certain of its individual members (collectively
petitioners).
The
Project is a proposed geothermal energy facility on national
forest land in Mono County. The United States Forest Service
manages the surface estate, and the Bureau of Land Management
is responsible for management of the subsurface estate
through geothermal leases. The Project will be constructed
adjacent to an existing geothermal complex located within the
Mono-Long Valley Known Geothermal Resource Area. The area has
been developed for geothermal power plants since
approximately 1984. The Project will be the fourth geothermal
power plant in the area.
A joint
Environmental Impact Statement (EIS) and EIR was prepared by
the Bureau of Land Management, the United States Forest
Service, and the District. The lead federal agency was the
Bureau of Land Management. The District was the California
state lead agency for purposes of preparing and certifying
the EIR.
The
objective of the Project is to produce commercially viable
electricity from clean and renewable resources, thereby
supporting California's twin goals of reducing greenhouse
gas emissions and dependency on fossil fuels. The Project
would work by pumping hot water from a deep geothermal
reservoir, extracting the heat using heat exchangers, and
reinjecting the water into the reservoir to be reheated and
reused. The heat would be used to vaporize the motive fluid,
normal pentane (n-pentane), in a closed loop system. The gas
would turn a turbine, generating electricity. N-pentane is
non-toxic, but it is an ROG, and is a precursor to the
formation of ozone.
Even
though the Project proposes to encase the n-pentane in a
closed-loop system, it is expected that n-pentane would leak
from the valves, connections, seals, and tubes of the closed
system. This expected leakage is referred to as fugitive
emissions. Questions surrounding these fugitive emissions are
the basis of this appeal.
Petitioners
argue that the District's finding that the fugitive
emissions would be limited to 410 pounds per day is not
supported by substantial evidence. Petitioners also argue
that the District's conclusion that there are no
additional feasible mitigation measures available to reduce
the Project's fugitive emissions of n-pentane is not
supported by substantial evidence. Finally, petitioners argue
the District abused its discretion by preparing the EIR and
acting as the lead agency.
The
trial court denied the petition for writ of mandate, finding
the District was the proper lead agency, the permit to
operate conclusively set the emissions limit, and that the
District properly determined that the additional proposed
mitigation measures were not feasible.
DISCUSSION
Preliminarily,
both the District and Ormat argue petitioners failed to
exhaust their administrative remedies, and that they cannot
now use CEQA to challenge the District's permit
conditions. They argue both Health and Safety Code section
42302.1 and the District's rules 200.A, 205, and 602,
required petitioners to challenge the permit conditions in an
administrative process.[1] We disagree.
“Exhaustion
of administrative remedies is a jurisdictional prerequisite
to maintenance of a CEQA action.” (Bakersfield
Citizens for Local Control v. City of Bakersfield (2004)
124 Cal.App.4th 1184, 1199.) The exhaustion requirements are
set forth in Public Resources Code section 21177. A
petitioner has exhausted its administrative remedies if: (1)
the alleged grounds for noncompliance with CEQA were
presented by any person during the public comment period or
prior to the close of the public hearing before issuance of
the notice of determination, and (2) the party filing the
CEQA action objected to the approval of the project during
the public document period or prior to the close of the
public hearing before the notice of determination was issued.
(Pub. Resources Code, § 21177, subds. (a) & (b).)
These requirements were met here.
The
issue of the proper lead agency was raised by petitioners.
The specific mitigation measures to reduce ROG emissions and
the lack of evidence to support the daily n-pentane emissions
were raised by the California Unions for Reliable Energy.
Even though petitioners did not raise all of the issues they
now assert during the administrative proceeding, all of the
issues were raised, and the party raising an issue during the
administrative process need not be the same party to raise
the issue in court. (California Clean Energy Committee v.
City of Woodland (2014) 225 Cal.App.4th 173, 191.)
Nothing further was required to exhaust petitioners'
administrative remedies.
I
Sufficient
Evidence of Fugitive Emissions Limit
The
District adopted a threshold of significance for ROGs of 55
pounds per day for the operation of the Project. The fugitive
emissions of n-pentane were calculated at 410 pounds per day,
well above the threshold of significance. Prior to
certification of the EIR, petitioners' counsel sent a
public records act request to the District seeking documents
to support the fugitive emissions estimate of 410 pounds per
day. The District replied with a schematic and table with all
information redacted, save the total emissions numbers. The
District stated that the geothermal flow rates were
considered proprietary.[2] Petitioners' counsel argued the
information was improperly redacted. The District then
submitted a second redacted version containing an unredacted
table and a partially redacted schematic. The information was
submitted after the final EIR was released, but nearly one
year before the notice of determination was filed.
Petitioners
argue the record does not contain substantial evidence to
support the conclusion that the Project's n-pentane
emissions will be limited to 410 pounds per day. They argue
the record contains no facts to justify the number. They
argue ...