Cal.Rptr.3d 904] APPEAL from a judgment of the Superior Court
of Mono County, Stan Eller, Judge. Affirmed and reversed in
part. (Super. Ct. No. CV140075)
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Drury, Michael R. Lozeau, Richard T. Drury and Rebecca L.
Davis for Plaintiffs and Appellants Russel Covington et al.
& Foerster, Peter Hsiao, Miriam A. Vogel; King and Spalding,
Peter Hsiao for Defendants and Respondents Great Basin
Unified Air Pollution Control District et al.
Mohun, Carney & Reed, James S. Reed, Richard W. Liebersbach,
R. Mark Carney; Liebersbach, Carney & Reed and Richard
Liebersbach for Real Parties in Interest and Respondents ORNI
50 LLC et al.
Cal.Rptr.3d 905] 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.
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
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).
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.
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.
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
[256 Cal.Rptr.3d 906] 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.
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
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.
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. We disagree.
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, 22
Cal.Rptr.3d 203.) 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 ...