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Covington v. Great Basin Unified Air Pollution Control District

California Court of Appeals, Third District, Mono

November 26, 2019

RUSSEL COVINGTON et al., Plaintiffs and Appellants,
v.
GREAT BASIN UNIFIED AIR POLLUTION CONTROL DISTRICT et al., Defendants and Respondents ORNI 50 LLC et al., Real Parties in Interest and Respondents.

          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 ...


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