Third District Court of Appeal Holds That Minor Deficiencies and Inaccuracies in an EIR for a Cogeneration Power Plant Project Did Not Result in Any Prejudicial Defects in the CEQA Review Process

On October 18, 2012, the Third District Court of Appeal ordered publication of its decision in Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) __ Cal.App.4th __ (Case No. C064930). The appellate court affirmed the trial court’s judgment denying the petition for writ of mandate and found the majority of the petitioners’ arguments were simply a difference of opinion with the lead agency. Although the EIR for the cogeneration power plant project contained small discrepancies relating to the project’s air quality impacts and water usage, the court held these inaccuracies did not prejudice the environmental review process. 

In 2006, Roseburg Forest Products Co. proposed expanding its existing wood veneer manufacturing facility to accommodate a biomass-fueled cogeneration power plant that would generate electricity for resale. The project involved installing new equipment on one acre of the 300-acre Roseburg facility near the town of Weed, as well as trucking in additional fuel for the cogeneration system. On December 6, 2006, the Siskiyou County Planning Commission determined that the project fit within a categorical exemption under CEQA and approved a conditional use permit for the project. After this decision was appealed, Roseburg withdrew its initial application and submitted a new application. On June 29, 2007, Siskiyou County issued a Notice of Preparation for an EIR for the project, and released a draft EIR in April 2008. On September 30, 2008, the Planning Commission approved the project and certified a final EIR. Mount Shasta Bioregional Ecology Center and Weed Concerned Citizens filed a petition for writ of mandate against the county and board of supervisors, alleging various CEQA violations. The trial court denied the petition. 

After a thorough discussion of the standard of review, the Court of Appeal addressed the alternatives analysis of the EIR. The court found that the EIR was adequate even though it only considered the “No Project” alternative in detail because the county had dismissed three other alternatives as not potentially feasible during the scoping phase. The court rejected the petitioners’ challenge to the alternatives analysis because they failed to show that there was no substantial evidence to support the county’s rejection of the three alternatives during the scoping phase. 

Next, the court considered the plaintiffs’ arguments regarding the project’s air quality impacts. The court found that a comment letter cited by the plaintiffs was not properly part of the record because the letter was submitted the day before the hearing on the plaintiffs’ appeal of the Planning Commission’s decision and not five days before as required by county hearing rules. Nonetheless, the court addressed the merits of the plaintiffs’ challenge and concluded that a small discrepancy of 7 percent between actual and approximate emissions of steam production from the facility did not result in prejudicial error. 

The court then turned to the project’s noise impacts. The court dismissed each of the plaintiffs’ assertions, noting the plaintiffs appeared confused about the difference between average sound level readings for 15-minute periods at various times during the day (Leq) and average sound levels for a 24-hour period (Ldn). The court found, among other things, that substantial evidence in the record supported the finding that mitigation measures could reduce noise impacts to less than significant levels, the discussion of noise from the turbine generator was adequate, and there was substantial evidence in the record that the project’s predicted noise increase of less than 1.1 dB was not cumulatively considerable. 

Finally, the court addressed the petitioners’ challenge to the EIR’s discussion of the project’s impacts to water. The court found that defendants could not cite anything in the record to support the EIR’s assertion that the project’s water usage would be 120,000 gpd when a Roseburg consultant’s conflicting estimate was around 230,400 gpd. Despite acknowledging that the draft EIR might have understated the overall water usage, the court held it was not a prejudicial abuse of discretion because the petitioners did not cite evidence the higher level of water usage would have a significant environmental impact. The court also found the argument that the EIR’s project description was inaccurate because it failed to discuss blow down water was “simply a difference of opinion” with the county over the EIR’s conclusion that there will be no water discharges.  (Elizabeth Sarine)