Everybody Love Raymond. Don’t mistake GBUAPCD for Raymond

Air Pollution Control District attacked from all sides in court this week.

Judge Stan Eller heard arguments this week in three separate but related cases against the Great Basin Unified Air Pollution Control District (GBUAPCD) due to its approval of an Environmental Impact Report (EIR) for the Ormat Casa Diablo IV (CDIV) geothermal plant project near Mammoth Lakes.

Mammoth Community Water District (MCWD), the Coalition for Responsible Mammoth Lakes Development, and the Laborers International Union of North America all sought to reverse the GBUAPCD decision and prohibit any construction of the geothermal plant until an alternate EIR is adopted.

Under the California Environmental Quality Act (CEQA), GBUAPCD is the lead agency for the EIR. At the same time, the EIR fulfills the National Environmental Policy Act (NEPA) requirements in which the Bureau of Land Management (BLM) is the lead agency. All parties invoked their interpretations of CEQA law in their arguments.

Alan Lilly, arguing for MCWD, told Judge Eller GBUAPCD did not meet its obligation as the lead agency under CEQA and abused its

under CEQA and abused its discretion when it certified the EIR. Lilly argued the EIR failed to address how increased geothermal pumping at CDIV would impact groundwater, which supplies drinking water to the Town of Mammoth Lakes.

MCWD operates nine production wells and various monitoring wells from five miles west of the junction of Highways 203 and 395. The proposed CDIV plant would be located in Basalt Canyon, north of highway 203. Currently Ormat has two production wells producing 4,000 gallons of geothermal fluid per minute. The new project would increase this to10,000 gallons per minute with 14 wells.

According to Lilly, MCWD is concerned about the hydraulic connectivity between the Town’s groundwater aquifer and the geothermal reservoir. Although the Mammoth groundwater basin is physically isolated from the deeper geothermal system, Lilly said GBUAPCD lacked substantial evidence that the increased pumping of geothermal fluid would not affect the availability or quality of the shallow groundwater resources.

Lilly asserted that GBUAPCD should have required additional data collection, including new monitoring wells and testing, particularly in the area between Basalt Canyon and the MCWD production wells. He argued that the analysis of that data should have been done before the draft EIR.

Lilly also argued GBUAPCD cannot defer its monitoring and mitigation obligations to the BLM, since NEPA standards are more “lenient” than CEQA. Although GBUAPCD has said that it will not approve the drilling of the geothermal wells at Basalt Canyon until the BLM monitoring and mitigation plan is in place, Lilly said this promise is nowhere in the record and regardless, as the lead agency, GBUAPCD cannot defer responsibility to another agency.

Rachel Koss, arguing for the Coalition for Responsible Mammoth Lakes Development, added that CEQA requires data relied upon in the EIR be made public and therefore GBUAPCD violated the Public Records Act, although they did use some of the data in their court briefs. “We should have had [the data] during the CEQA process and not a year later,” Koss said. “Our opportunity to meaningfully participate was denied.”

A quick note on the Coalition: last year, Lilly and Ormat attorney Jim Reed told The Sheet that no one had ever heard of the Coalition prior to the lawsuit. The Coalition is actually California Unions for Reliable Energy (CURE), an infamous “greenmailer” that, like the Laborers International Union of North America (LiUNA), sues renewable energy projects to force those projects to employ its union laborers.

Koss also argued the EIR doesn’t address impacts of the geothermal plant on the Tui Chub, an endangered fish in the Owens River. Koss said the CDIV project will change the flow and temperature of the head spring where the Tui Chub live.

Although the EIR relies on monitoring of the Tui Chub by Long Valley Hydraulic Advisory Committee (LVHAC), Koss criticized the committee, saying it is a non-regulated body that ORMAT is a part of and funds, conducting business in secret meetings.

Finally, Rebecca Davis, representing LiUNA, argued the EIR lacked an air quality impact analysis with substantial evidence. Davis described the potential significant impact on air quality, given the CDIV plant will produce n-Pentane, an ozone precursor. Without requiring mitigation measures, including a stringent leak detection program, Davis argued that GBUAPCD violated CEQA.

She also argued that Mono County should have taken the lead due to “its general powers over the project as a whole with greater experience and greater power to mitigate.”

Jim Reed, representing Ormat, argued that under CEQA, the project’s EIR only had to prove a lack of significant impact on groundwater supply, not an absolute lack of impact. “With science, there is never absolute certainty,” he said. “It’s always possibilities and probabilities.”

Reed said the EIR reviews 25 years of data from every available well in the area, looking at the pressure histories, temperature differentials and chemical contaminants. He emphasized that the MCWD wells are almost two miles away from Basalt Canyon and that there is 900 feet of “impermeable rock” between the groundwater aquifer and the geothermal reservoir.

He also said Ormat has measures in place to shut down production if the n-Pentane gases leak. Also, the Tui Chub has been monitored for 10 years by LVHAC and, he argued, an impact on the endangered species will be “virtually undetectable” given that the fish doesn’t live near the proposed project but rather two miles down stream.

Addressing Koss’s accusation that GBUAPCD violated the Public Records Act, Reed said the data relied upon for the EIR is protected under trade secret law, given that it uses trade formulas by the scientists involved.

Peter Hsiao represented GBUAPCD. He said three different agencies, GBUAPCD, BLM and the U.S. Forest Service, have concluded that there is no “evidence of connection between the groundwater aquifer and the geothermal reservoir … It’s not the role of the court to replace the judgment of the agencies.”

Hsiao cited three Supreme Court cases where in a battle of the experts, the Court must defer to the scientists at the lead agency if it is determined that they provided substantial evidence.

He reminded the court that all the agencies involved in the EIR have missions specifically to protect resources in the area and that GBUAPCD is just as concerned about the drinking water resources for Mammoth Lakes as anyone else.

In terms of a mitigation plan, Hsiao argued that the BLM lease agreement with Ormat has 70 mitigation conditions, including a measuring and mitigation plan for the effects of geothermal pumping on groundwater. GBUAPCD couldn’t require these measures in the EIR because of the lack of substantial evidence of the connectivity between the groundwater aquifer and the geothermal reservoir. However, “exactly the same remedy [that MCWD is requesting] is put in place,” Hsiao concluded.

Rebuttal arguments continued Thursday afternoon as the Sheet went to print. Judge Eller has 90 days after the conclusion of the arguments to render a judgment.