Co-Gen EIR With Limited Range Of Alternatives Upheld

By William W. Abbott

Roseburg Forest Products Co. operates a wood veneer processing facility in Weed, California. In 2008, the County of Siskiyou approved a permit for the purpose of installing a biomass-fueled cogeneration power plant. The project included a steam-driven cogeneration system, turbine, cooling tower and substation (communications tower and building.) Source fuel included waste wood from the veneer plant operation, along with fuel from forest management activities. The County processed an EIR. In September 2008, the Siskiyou County Planning Commission certified an EIR and approved the use permit. Mount Shasta Bioregional Ecology Center (“MSBEC”) and others appealed the Commission’s decision. The Board upheld the permit in November of 2008. MSBEC and another organization then filed a CEQA challenge. In March, 2010, the trial court denied the writ petition.

In a lengthy, 70 page decision, the Court of Appeal, Third Appellate District, upheld the sufficiency of the EIR against numerous challenges. Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184. The first issue tackled by the appellate court was the matter of alternatives. Three alternatives were considered but rejected early on. These included reduced capacity (on site), rejected as it would not meet basic objectives; an alternative location onsite was rejected on the basis that impacts in many environmental areas would increase; and offsite at Roseburg’s Oregon facility which potentially would increase hauling related impacts and might not meet one of project objectives, which was to assist in meeting California’s renewable portfolio standards. The only alternative studied in the EIR in any depth was the no-project alternative. As to the sufficiency of the alternatives analysis, the appellate court agreed with MSBEC that alternatives considered and rejected early on do not count towards the required reasonable range of alternatives. That said, there was no evidence that there were other feasible alternatives which could have been considered, and based upon these particular facts, the appellants had failed to demonstrate the County abused its discretion in approving the alternatives analysis.

Turning next to the air quality impacts, the court then wrested with the baseline, and whether the lead agency relied upon maximum permitted rates or actual operating conditions as the baseline. In a highly technical discussion of the intricacies of boiler operations, the court ultimately concluded that the lead agency had not committed the sin of using permitted maximums as the baseline, thereby avoiding the error in Communities for a Better Environment v. South Coast Air Quality Mgmt. District (2010) 48 Cal.4th 310. Appellant’s argument was based in part on a letter submitted after the Planning Commission approval, but the letter was not submitted in compliance with a locally adopted rule requiring written documents be submitted five days in advance of the hearing date. The appellate court concluded that the letter was not timely submitted in conformance with local administrative rules and therefore, was not information before the court of appeal in review of the Board’s decision. On the merits of the argument, the appellate court concluded that although there was a mathematical discrepancy in the calculation of emissions of seven percent, such an error would not have “precluded informed decision-making or informed public participation.” On a related air quality issue, the appellants also complained that there was an inadequate description of the process to control NOx emissions. While only a general description was included in the EIR, that is all that the CEQA Guidelines section 15124 requires.

The appellate court then resolved three noise issues: failure to address noise impacts, failure to recirculate the EIR based upon additional noise information, and a lack of evidence to support the conclusion that impacts would be reduced to a level of insignificance. The court’s favorable resolution of the noise issue turned largely on the appellant’s errors in describing the content of the administrative record. The County’s noise mitigation strategy was in part guided by potential future complaints. In other words, future noise complaints would trigger investigation and future mitigation tied to meeting the threshold of significance. While the appellants complained of this mitigation strategy, the appellate court could find no flaw in the County’s approach. Turning next to the EIR recirculation question, the appellate court determined that noise reports summarized and relied upon the draft, but then physically attached to the FEIR did not constitute substantial new information necessitating recirculation.

The final substantive area reviewed involved water supplies and water quality. As to the challenges to the water use, the appellants relied upon comments offered by two residents regarding likely water use (consumptive vs. non-consumptive), however, the court viewed such evidence as speculation which did not overcome the otherwise unrefuted evidence in the record on anticipated water use. Appellant’s next objection was aimed at the cooling tower, and whether or not it would operate as a closed loop system (no discharge/loss) or open system. The court viewed the complaint as reflecting a difference of opinion, which was not a basis for invalidating the EIR’s conclusions otherwise supported by the administrative record. The veracity of the applicant’s witnesses were matters for the Board of Supervisors to decide, not the appellate court. The appellate court did agree with the appellants that the County did not respond to the an allegation that the project would require 230,400 gallons per day in make-up water, but the court went on to observe that a technical error in addressing this number by itself was insufficient to invalidate the EIR, absent something more. Finally, while there were differences in the record as to whether the project would use groundwater as compared to stream water (the latter to which the applicant had adjudicated water rights), representations on the record by the Planning Director and the applicant’s representatives and legal counsel served as substantial evidence that groundwater would not be utilized.

William W. Abbott is a partner at Abbott & Kindermann, LLP. He represented the lead agency, Siskiyou County, in this litigation. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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