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Filed 11/26/19; Certified for Publication 12/23/19 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Mono)

----

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.

C080342

(Super. Ct. No. CV140075)

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. 
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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 
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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.

1 Health and Safety Code section 42302.1 provides that a decision or action 

pertaining to the issuance of a permit by an air pollution district may be challenged 
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“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 

within 30 days of the decision by a request that the district’s hearing board hold a public 

hearing. District Rule 200.A provides that a written permit from the District must be 

obtained before building anything that emits air contaminants. Rule 205 sets forth the 

procedures for acceptance of an application for a permit. Rule 602 sets forth the contents 

required for a petition requesting a hearing before the District hearing board.
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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 their own 

expert evidence shows that actual emissions would be 10 times greater. 

Both the District and Ormat respond that the project must comply with the permit 

to operate, which limits the emissions of n-pentane to 410 pounds per day. Therefore, 

they argue, it is immaterial that there is not evidence in the record of how Ormat 

calculated the fugitive emissions. We agree. 

2 Public Resources Code section 21160 provides that a public agency may require 

any applicant for a permit to submit data necessary to enable the agency to prepare an 

EIR, but if the information submitted is a trade secret as defined in Government Code 

section 6254.7, it will not be included in the EIR or disclosed by the public agency. 

Government Code section 6254.7, subdivision (d) defines trade secrets as: “[A]ny 

formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, 

or compilation of information which is not patented, which is known only to certain 

individuals within a commercial concern who are using it to fabricate, produce, or 

compound an article of trade or a service having commercial value and which gives its 

user an opportunity to obtain a business advantage over competitors who do not know or 

use it.” Nevertheless, air pollution emissions data, even data which constitute trade 

secrets, are public records. But, data used to calculate emissions data are not emissions 

data and not public records. (Gov. Code, § 6254.7, subd. (e).) Thus, emissions data are 

public records that must be disclosed, but data used to calculate emissions data may 

constitute a trade secret and be excluded from the EIR and from public disclosure.
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Ormat’s preliminary permit application is for “411 lbs[.] per day of allowable 

fugitive/non-fugitive emissions. Probably less when the plant is new, increasing as it gets 

toward the end of its estimated 30 year lifespan.”3 If there are adequate measures in 

place for detecting and reporting emissions and for enforcing the emissions limits, it is 

immaterial how the emissions are calculated because they will be within permitted limits.

The District adopted mitigation measures that are adequate for detecting and 

reporting n-pentane emissions. The District adopted Mitigation Measures AQ-5 and AQ6 with respect to the n-pentane emissions. Measure AQ-5 requires Ormat to prepare and 

implement an emission management plan for the District’s approval. The plan must: 

(1) describe the method for determining the daily n-pentane volume in the plant; 

(2) explain how to calculate n-pentane loss rates over a given period; (3) provide a 

procedure for detecting and reporting breakdown events, i.e., when n-pentane leaks are 

greater than 410 pounds per day, which procedure complies with the District’s rule 

403.B;4(4) provide a plan for repairing leaks associated with breakdown events and a 

3 There is no explanation by the parties of the discrepancy between 410 pounds per 

day mentioned in the EIR and 411 pounds per day stated in the preliminary permit

application. We will assume that the final permit will be for 410 pounds per day, as 

stated in the EIR.

4 District rule 403.B states: “1. The owner or operator shall notify the Air Pollution 

Control Officer of any occurrence which constitutes a breakdown condition; such 

notification shall identify the time, specific location, equipment involved, and, to the 

extent known, the causes of the occurrence, and shall be given as soon as reasonably 

possible, but no later than one (1) hour after its detections, unless the owner or operator 

can demonstrate that a longer reporting period is necessary. [¶] 2. The Air Pollution 

Control Officer shall establish written procedures and guidelines, including appropriate 

forms for logging of initial reports, investigation, and enforcement follow-up, to ensure 

that all reported breakdown occurrences are handled uniformly to final disposition. 

[¶] 3. Upon receipt of notification pursuant to subparagraph B(1), the Air Pollution 

Control Officer shall promptly investigate and determine whether the occurrence 

constitutes a breakdown condition. If the Air Pollution Control Officer determines that 

the occurrence does not constitute a breakdown condition, the Air Pollution Control 
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maintenance plan for routing monitoring and prevention of n-pentane leaks; and (5) 

provide a format for quarterly reports on n-pentane losses and purchases, and update the 

emissions management plan as necessary to ensure compliance with federal, state, and/or 

district rules and to incorporate improvements. 

Measure AQ-6 requires Ormat to obtain a portable volatile organic compound leak 

detector capable of meeting the performance specifications described in the United States 

Environmental Protection Agency’s (USEPA) “Source Test Reference Method 21,” 

which instrument must be properly maintained, calibrated and made available on the 

property site. Ormat must use the leak detector at least monthly to detect leaks from all 

flanges, valves, pump seals, safety relief valves, accumulator vessels, and turbine gland 

seals. If a leak greater than 10,000 parts per million by volume (ppmv) is detected, 

Ormat must initiate repairs as soon as practical and must tag and log the leak’s location, 

concentration, date discovered, and dates of each repair attempt. Ormat must provide the 

District a report containing the six-month average daily emission calculations and npentane purchases must be submitted electronically to the District within 30 days from 

the end of each calendar quarter. Ormat must provide the District a summary record of 

the leak repairs made when reporting n-pentane losses. 

These mitigation measures ensure that the fugitive n-pentane emissions will be 

adequately detected and reported.

Additionally, there are measures in place to enforce the emissions limits. The 

Project is required to conform to the District requirements for controlling emissions, and 

Ormat must not violate the rules and regulations of the District. The District’s rule 209-A 

(C)(1) specifically allows the amount of emissions to be established by the permit 

applicant’s agreement to limit operations as a condition of receiving the permit. 

Officer may take appropriate enforcement action including, but not limited to, seeking 

fines, and abatement order, or an injunction against further operation.” 
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Other cases have held in similar situations that compliance with performance 

standards is a substitute for substantial evidence to support a finding of mitigation. In 

Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 887-888, the 

petitioners brought a CEQA challenge to a residential, retail/commercial, open space, and 

marina project along Oakland’s estuary. The petitioners argued there was insufficient 

evidence to support the finding that the mitigation measures reduced seismic impacts to a 

less than significant level. (Id. at p. 903.) The court found that compliance with the 

building code, which was intended to promote structural safety in the event of an 

earthquake, as well as other regulatory provisions provided substantial evidence that the 

mitigation measures would reduce seismic impacts to a less than significant level. (Id. at 

pp. 903-904.) Thus, “a condition requiring compliance with regulations is a common and 

reasonable mitigation measure, and may be proper where it is reasonable to expect 

compliance.” (Id. at p. 906.)

Likewise in Laurel Heights Improvement Assn. v. Regents of University of 

California (1988) 47 Cal.3d 376, 418, the EIR stated that a city ordinance would be used

as the performance standard for allowable noise levels, and that the project would comply 

with the performance standard. The petitioners argued there was not substantial evidence 

to support a finding of mitigation, but the court held the proponent’s commitment to 

evaluate noise levels and comply with performance standards was sufficient. (Id. at 

pp. 413, 418.) Relying on Laurel Heights Improvement Assn., this court stated: “Where 

future action to carry a project forward is contingent on devising means to satisfy such 

criteria, the agency should be able to rely on its commitment as evidence that significant 

impacts will in fact be mitigated. (Sacramento Old City Assn. v. City Council (1991) 229 

Cal.App.3d 1011, 1029.) 

More recently the plaintiffs in Sierra Club v. County of Fresno (2018) 6 Cal.5th 

502, 525, argued that mitigation measures that were enforceable through permit 

conditions were unenforceable. The Supreme Court disagreed, stating that the project’s 
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mitigation and monitoring program placed the burden on the county to ensure that the 

project conformed to the conditions pursuant to which the project was approved. (Id. at 

p. 526.) 

Petitioners cite Kings County Farm Bureau v. City of Hanford (1990) 221 

Cal.App.3d 692 for the proposition that an agency may not rely on a limit provided in a 

permit or regulation to avoid CEQA review. That case is inapposite. There, the EIR 

divided emissions during operation of a cogenerations plant into on-site emissions and 

secondary emissions, which resulted from traffic and the train delivery of coal. (Id. at p. 

714.) In response to the plaintiffs’ contention that the EIR’s analysis of emissions was 

skewed because of the separation of on-site and secondary emissions, the real party in 

interest argued that the issuance of permits by the USEPA and pollution control district 

resulted in a presumption of no significant impact. (Id. at p. 716.) The court found the 

permits did not consider secondary emissions, thus the permits could not be relied upon 

to conclude the project would have no significant impact on air quality. (Ibid.) Here, 

there is no issue about whether the permit considers all emissions. The permit only 

allows 410 pounds of n-pentane emissions daily. The daily n-pentane emissions is the 

figure petitioners question, and the daily n-pentane emissions are precisely what the 

permit allows. This is not a situation where the permit does not account for all of the 

emissions. 

We conclude that by agreeing to limit its daily emissions to 410 pounds, Ormat 

was not required to present evidence to support its emissions estimate. The mitigation 

measures are adequate to ensure the amount of emissions are detected and reported, and 

the consequences of violating the permit are sufficient to ensure Ormat will comply with 

the permitted daily limit.
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II

Additional Mitigation Measures

The EIR found that ROG emissions would be significant and unavoidable, even 

with mitigation. The ROG emissions are almost exclusively related to the fugitive npentane emissions. The EIR found that the significant impact would be mitigated with 

the imposition of mitigation measures, but not to a less than significant level. The EIR 

found that no additional feasible mitigation measures were available to further 

substantially reduce fugitive n-pentane emissions. This finding was based on the fact that 

the Project would include “state of the art equipment and best available technology” to 

limit ROG emissions. The EIR does not define “state of the art equipment and best 

available technology,” and comments to the EIR identified additional equipment and 

technology to further mitigate the fugitive n-pentane emissions. However, these 

additional mitigation measures were not adopted. 

As is relevant here, a public agency cannot approve a project if the EIR identifies 

one or more significant effects on the environment, unless the agency makes a finding 

with respect to each significant effect that specific economic, legal, social, technological, 

or other considerations make infeasible the mitigation measures or alternatives identified 

in the EIR and makes a statement of overriding consideration with respect to the 

significant effects. (Pub. Resources Code, § 21081.) The statement of overriding 

considerations for the Project found that in spite of the unmitigated environmental 

impacts, the Project would result in the following benefits: (1) Supporting California’s 

goals for reducing greenhouse gas emissions and reducing dependency on fossil fuels 

through the increased use of renewable energy sources; (2) supporting California’s 

“Renewable Portfolio Standard program,” which requires investor-owned utilities, 

electric service providers, and community choice aggregators to increase their 

procurement of eligible renewable-energy resources to 33 percent of total procurement by 

2020; (3) providing low “GHG-emitting” base load renewable energy generation; 
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(4) creating six new long-term well-paid jobs; (5) producing 42.4 megawatts of 

commercially viable electricity from clean and renewable resources; and (6) reducing 

potential environmental impacts of plant operations by implementing a robust reporting, 

inspection, and monitoring program. 

CEQA provides that public agencies should not approve a project if there are 

feasible mitigation measures that would substantially lessen the significant environmental 

effects of the project. (Pub. Resources Code, § 21002.) An agency may reject a 

mitigation measure if it finds it to be infeasible. (Pub. Resources Code, § 21081.) A 

feasible mitigation measure is one that is capable of being accomplished in a successful 

manner within a reasonable period of time, taking into account economic, environmental, 

social, legal, and technological factors. (Pub. Resources Code, § 21061.1; Cal. Code 

Regs., tit. 14, § 15364.) 

The District found that the air quality impacts could not be reduced to a less than 

significant level. In support of the finding the District stated: “Based on the EIS/EIR and 

the entire record, this significant and unavoidable impact is mitigated with imposition of 

Mitigation Measures AQ-5 and AQ-6 (found on EIS/EIR pages 4.2-21 and 4.2-22), but 

not to a level less-than-significant. Because the project will include state of the art 

equipment and best available technology that would limit fugitive ROG (i.e., n-pentane) 

emissions, no additional feasible mitigation measures are available to further 

substantially reduce fugitive ROG emissions. Even with imposition of Mitigation 

Measures AQ-5 and AQ-6, this impact would remain significant and unavoidable.”

Petitioners argue there were feasible mitigation measures available, and that the 

District abused its discretion by failing to adopt those measures. Specifically, petitioners 

argue the District could have adopted a stronger leak detection and repair (LDAR) 

program, and could have required low-leak or leakless technology to further mitigate the 

fugitive n-pentane emissions. 
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These issues were raised in the comments to the draft EIR. A lead agency must 

evaluate comments to a draft EIR and prepare written responses that describe the 

disposition of any “significant environmental issue” raised. (Pub. Resources Code, § 

21091, subd. (d)(1)-(2).) Where a significant environmental issue is raised, the lead 

agency must address the concern “in detail giving reasons why specific comments and 

suggestions were not accepted. There must be good faith, reasoned analysis in response. 

Conclusory statements unsupported by factual information will not suffice.” (Cal. Code 

Regs., tit. 14, § 15088, subd. (c).) The level of detail in the response may correspond to 

the level of detail in the comment, so that a general response is sufficient to a general 

comment, but a more detailed response is needed for a more detailed comment. (Cal. 

Code Regs., tit. 14, 15088, subd. (c).) The EIR “must respond to specific suggestions for 

mitigating a significant environmental impact unless the suggested mitigation is facially 

infeasible. [Citations.] While the response need not be exhaustive, it should evince good 

faith and a reasoned analysis.” (Los Angeles Unified School Dist. v. City of Los Angeles

(1997) 58 Cal.App.4th 1019, 1029.) Finally, an agency need not “adopt every nickel and 

dime mitigation scheme brought to its attention or proposed in the project EIR,” but it 

must incorporate “feasible mitigation measures” “when such measures would 

‘substantially lessen’ a significant environmental effect.” (San Franciscans for

Reasonable Growth v. City and County of San Francisco (1989) 209 Cal.App.3d 1502, 

1519.) 

A. Leak Detection and Repair Program

Petitioners claim a more stringent LDAR program was feasible. Petitioners 

criticize the leak rate (the amount of gas particles detected to trigger repair) and the 

amount of time allowed for leak repair. Specifically, the LDAR program for the Project 

(set forth in Mitigation Measure AQ-6) requires that the leak be repaired “as soon as 

practical” where the leak exceeds 10,000 ppmv. Comments to the EIR included evidence 

showing that lowering the leak rate and increasing the frequency of monitoring are 
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effective in reducing emissions.5 Petitioners argue the Bay Area Air Quality 

Management District (BAAQMD) uses best available technology for equipment leaks, 

which technology requires minimization of the leak within 24 hours and repair within 

seven days when the leak rate is 100 ppmv for all fugitive components except pumps, for 

which 500 ppmv is the leak rate triggering repair. 

As indicated, the proposal that a more stringent LDAR program was feasible was 

raised in the comments to the draft EIR. One comment to the draft EIR was the 

following: “[Air quality expert Dr. Petra Pless] also shows that additional and/or more 

stringent mitigation measures for the leak detection and repair program are feasible. 

While the Applicant’s proposed BACT [(best available control technology)] measure for 

equipment leaks includes the ‘placement of pentane-specific vapor sensors at strategic 

locations[,]’ as well as ‘leak checks, inspections, monitoring, and leak logging,’ Pless 

finds those measures inadequate to address smaller and slow leaks and therefore not 

BACT for the Project. Instead, Pless recommends the USEPA’s leak detection and repair 

(‘LDAR’) regulations for petroleum refineries and chemical manufacturing facilities. 

The implementation of LDAR is feasible, as it incorporates the elements of the proposed 

inspection program with additions, such as quantification of fugitive ROG leaks with a 

portable analyzer.” (Fns. omitted.) 

Another comment regarding the LDAR was: “Thus, BACT for equipment leaks at 

CD-4 should be a leak rate of 100 ppm for all fugitive components, enforced by quarterly 

monitoring using [USEPA] Method 21 with minimization of the leak within 24 hours and 

repair within 7 days. . . . A higher leak rate for pumps, no higher than the 500 ppm 

5 Evidence was submitted that in refineries, a quarterly monitoring program with a 

leak rate of 10,000 ppmv will reduce emissions by 70 percent, while a leak rate of 500 

ppmv with monthly monitoring will reduce emissions 95 percent.
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specified in BAAQMD Rule 8-18, must be accompanied by an analysis demonstrating 

that 100 ppm is not technologically feasible or cost effective in the subject applications.”

The District points to the trial court’s findings to support its claim that there was 

sufficient evidence that no additional feasible mitigation measures were available to 

further substantially reduce fugitive ROG emissions. However, the trial court’s finding 

was not that significant evidence supported the conclusion that stricter LDAR mitigation 

measures were not feasible. Rather, the trial court found that the mitigation measures 

proposed by the petitioners were not supported by substantial evidence. This is not the 

issue. The court is tasked with determining whether substantial evidence supports the 

District’s findings. (Town of Atherton v. California High-Speed Rail Authority (2014) 

228 Cal.App.4th 314, 349.) The relevant finding here is that no additional feasible 

mitigation measures were available to further substantially reduce fugitive ROG 

emissions. 

The District argues that the BAAQMD requirements for equipment leaks are not 

applicable here because those requirements are for petroleum refineries and chemical 

plants, not geothermal plants. It is certainly relevant to the analysis that the BAAQMD 

standards for equipment leaks were for petroleum refineries and chemical plants. 

However, the expert’s comments stated that the LDAR for petroleum refineries and 

chemical manufacturing facilities was equally feasible for the Project. The response to 

this comment does not explain why the stricter LDAR program would not be feasible for 

the Project, but merely states that the LDAR program will be “conducted per USEPA 

methods.”

The USEPA Best Practices Guide (Guide) states: “Method 21 requires [volatile 

organic compound] emissions from regulated components to be measured in parts per 

million (ppm). A leak is detected whenever the measured concentration exceeds the 

threshold standard (i.e.[,] leak definition) for the applicable regulation. [¶] Leak 

definitions vary by regulation, component type, service (e.g., light liquid, heavy liquid, 
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gas/vapor), and monitoring interval. [¶] -Most [New Source Performance Standards] 

have a leak definition of 10,000 ppm. Many [National Emission Standards for Hazardous 

Air Pollutants] use a 500-ppm or 1,000-ppm leak definition.” N-pentane is not a 

hazardous air pollutant. (40 C.F.R. § 61.01 (2019).) The Guide states that best practices 

for repair call for repairing leaks “as soon as practicable but not later than a specified 

number of calendar days (usually 5 days for a first attempt at repair and 15 days for final 

attempt at repair) after the leak is detected.” Mitigation Measure AQ-6 calls for leak 

repairs to be initiated as soon as practical, but does not give a specified number of days as 

a deadline. Method 21 specifically addresses volatile organic compound leaks. (40 

C.F.R. pt. 60, app. A-7 (2019).) It sets forth standards for using a portable instrument to 

detect volatile organic compound leaks. (Ibid.) It deals with equipment requirements 

and calibration, and sample collection methods. (Ibid.) It does not address leak rates or 

repair times. 

Thus, the Guide recognizes the stricter LDAR practices for hazardous air 

pollutants, but allows the more lenient LDAR program adopted by the District where, as 

here, the emissions do not involve hazardous air pollutants. Even so, the Guide would 

require a maximum date for repairing leaks, and the LDAR approved by the District 

requires merely that leaks be repaired as soon as practical. 

The point raised by petitioners and their expert is that the emissions the Project 

will produce will have a significant environmental effect, thus the Project should employ 

the stricter LDAR program that is feasible for petroleum refineries and chemical plants, 

and would be feasible here. The District made no attempt to show that such an LDAR 

program would not be feasible here. The measures proposed by petitioners do not require 

additional equipment–only that the leak rate triggering repair be a smaller number, and 

that there be an outside limit to the number of days allowed for repair. The District was 

required to give a good faith, reasoned analysis for not adopting the stricter LDAR 

program utilized in petroleum refineries and chemical plants. The stricter LDAR 
16

program may not be feasible for a geothermal plant. The point is, the District made no 

attempt to explain why such a program was not feasible. Accordingly, there is 

insufficient evidence in the record to find that no further mitigation measures were 

feasible. 

B. Leakless and Low-Leak Technology

Petitioners argue there was evidence that low-leak or leakless technology was 

feasible. Leakless and low-leak technology involves welded connections and the use of 

what the USEPA calls “leakless” equipment components. “Leakless” valves “include 

bellows valves and diaphragm valves.” “Sealless” pumps for reducing leaks include 

“diaphragm pumps, canned motor pumps, and magnetic drive pumps. Leaks from pumps 

can also be reduced by using dual seals with or without barrier fluid.” Petitioners’ 

experts also mention bellows valves, as well as graphite-packed control valves and 

hermetically-sealed valves and flanges. 

Petitioners’ evidence indicated leakless technology has been used in refineries and 

chemical facilities. Petitioners’ experts claimed the technology would be “equally 

feasible” in a geothermal facility, but offered no evidence of a completely leakless 

existing geothermal facility. The Guide states that the use of leakless technology “may 

be limited by materials of construction considerations and process operating conditions.”

The District’s response to these comments in the administrative proceeding was: 

“The proposed motive fluid system does include limited leakless technology, including 

welded connections wherever feasible and practical (Ormat 2013). For example, pipeline 

runs, elbows, and transitions would be welded. Leakless technology would not be 

feasible or practicable for some components of the motive fluid system. For example, 

valves would be flanged in case they would ever need to be replaced and instrumentation 

would need to be threaded to allow for calibration and/or replacement.” 

The District’s response to this argument on appeal is again to point to the trial 

court’s findings. The trial court found that there was no evidence that leakless 
17

technology has been or can be used in a geothermal plant. But again, the proper question 

to be answered is not whether the petitioners have presented evidence that leakless 

technology can be used in a geothermal plant, but whether the District presented evidence 

that leakless technology is not feasible in this plant. 

Petitioners argue the District’s response to its experts’ comments regarding 

leakless technology is inadequate. They argue the EIR should contain a discussion of 

which Project components will be leakless, and how, when, and who will determine 

whether leakless technology will be feasible. While we do not agree that the EIR was 

required to contain this level of detail, more information was required than was given.

An EIR must contain a sufficient degree of analysis to enable the decisionmakers 

to make an intelligent and informed decision. (Cal. Code Regs., tit. 14, § 15151.) 

Information that leakless technology would be utilized wherever feasible was merely a 

conclusion, and does not present sufficient facts for an intelligent decision. The District’s 

explanation that valves would be flanged in case they needed to be replaced and that 

instrumentation would be threaded to allow for calibration or replacement explains why 

those components could not be welded, but it does not address petitioners’ point that 

other leakless or low-leak technology is available, such as graphite-packed control 

valves, bellows-sealed valves, and hermetically sealed valves and flanges. The EIR made 

no attempt to explain whether such methods would be used, and if not whether such 

methods were infeasible. This was an inadequate response to comments to the EIR. The 

District must give a good faith, reasoned response to these comments, indicating why 

such measures are not feasible. 

III

The District Was the Proper Lead Agency

Petitioner argues Mono County, not the District, was the proper lead agency 

because it was “the agency with general governmental powers, such as a city or county, 

rather than an agency with a single or limited purpose such as an air pollution control 
18

district or a district which will provide a public service or public utility to the project.” 

(Cal. Code Regs., tit. 14, § 15051, subd. (b)(1).) Petitioner claims this tainted the entire 

CEQA process and invalidated the EIR. 

California Code of Regulations, title 14, section 15051 sets forth the protocol for 

choosing the lead agency for purposes of CEQA. Where, as here, the project is to be 

carried out by a nongovernmental entity, “the lead agency shall be the public agency with 

the greatest responsibility for supervising or approving the project as a whole.” (Cal. 

Code Regs., tit. 14, § 15051, subd. (b).) This will “normally” be the agency with general 

governmental powers. If more than one agency with general governmental powers has 

similar responsibility for approving the project as a whole, the agency that acts first will 

be the lead agency. (Cal. Code Regs., tit. 14, § 15051, subd. (c).)

The Project is located almost exclusively on federal land, and federal agencies 

have jurisdiction over the surface and subsurface impacts. When the approval process 

began, the agencies involved believed that the only nonfederal agency with any permit 

authority over the Project was the District, so the District became the lead agency under 

CEQA. As the project developed, it became clear that some of the pipeline would run 

across private property and would therefore require a use permit from Mono County. 

Even though the guidelines state a preference for an agency with general 

governmental powers, that preference does not apply if another agency has greater 

responsibility for supervising or approving the project as a whole. In this case, Mono 

County only approved a conditional use permit for a small portion of the Project. A 

conditional use permit was required from Mono County for 1,500 feet of pipeline to be 

placed on Ormat’s land. Thus, the District was a proper lead agency under the 

circumstances. 

DISPOSITION

The judgment is affirmed and reversed in part. The case is remanded to the trial 

court with instructions to enter a new judgment granting the petitioners’ mandamus 
19

petition with respect to the District’s determination that petitioners’ proposed measures to 

lessen the significant air quality impacts of the Project, i.e., leakless and low-leak 

technology and a stricter leak detection and repair program, were infeasible. On remand 

the superior court is directed to order the District to provide a reasoned analysis 

supported by factual information in response to the mitigation measures proposed by the 

petitioners as detailed above. The parties shall bear their own costs on appeal. (Cal. 

Rules of Court, rule 8.278 (a)(5).) 

 /s/

BLEASE, J.

We concur:

 /s/

RAYE, P. J.

 /s/

BUTZ, J.
1

Filed 12/23/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Mono)

----

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.

C080342

(Super. Ct. No. CV140075)

ORDER CERTIFYING 

OPINION FOR 

PUBLICATION

[NO CHANGE IN 

JUDGMENT]

THE COURT:

The opinion in the above-entitled matter filed November 26, 2019, was not 

certified for publication in the Official Reports. For good cause it appears now that the 

opinion should be published in the Official Reports and it is so ordered.
2

EDITORIAL LISTING

APPEAL from a judgment of the Superior Court of Mono County, 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.

BY THE COURT:

 /s/

RAYE, P. J.

 /s/

BLEASE, J.

 /s/

BUTZ, J.