Air pollution district begins biomass appeal hearing

Charlie Unkefer

The Siskiyou County Air Pollution Control District  last week heard an appeal over its decision to issue an Authority to Construct and Temporary Permit to Operate for Roseburg Forest Products’ bio-mass cogeneration project in Weed.

The appeal, which was filed by Weed Concerned Citizens and the Mt. Shasta Bioregional Ecology Center,  began on May 6, but after three and a half hours of heated deliberations, prolonged in part by confusions over the hearing procedure process, it was far from over.  It is scheduled to resume on May 18 at 9 a.m.

Prior to opening statements by the appellates, several preliminary issues were addressed.

Potential conflict of interest

First to be discussed was the issue of a potential conflict of interest involving appeals board chairman Jim Gubetta. Under provisions of the Fair Political Practices Commission, an appeals board member cannot reside within 500 feet of a project subject to appeal, as does Gubetta.

However, with only three board members currently serving on what is intended to be a board of five (Martin Andreas, Virgil Morton and Gubetta are the three board members), the FPPC cited a “rule of necessity, claiming  that a “legally required participation” exception was valid for the board to be able to establish a quorum. The decision was, in part, supported by claims that economic harm would be sustained in the event of a delay.

The appellates took issue with the “rule of necessity” recommendation, citing the fact that several applications had been filed on May 1 to fill the remaining seats. The appellates also questioned the claim that a short delay would result in economic harm.

According the District, there had been four applications made to fill the remaining seats. They claimed that though the applications were received by the May 1 cut ff date, they did not appear on the May 5 Board of Supervisors agenda for consideration because there was insufficient time to adequately review them.

Ability to rule on EIR

Another issue subject to discussion was whether or not the District Appeals Board has the authority to rule on the provisions of the Environmental Impact Report filed by the county.

The question was over the jurisdictions of a “responsible party” such as the district versus a “lead agency,” such as the County Board of Supervisors.  

“It is my opinion that the challenges to the EIR are not within the scope of the (appeals) board,” stated County Counsel Tom Guarino.

The appellates questioned this decision, with Weed Concerned Citizen representative Dale LaForest noting that, in other cases statewide, hearing boards have allowed citizen appeals under Health and Safety Code Section 42302.1. 

LaForest also cited CEQA Guidelines 15096(e), which he asserted allows a “responsible agency” like  the APCD to consider  CEQA adequacy.

The board passed a motion 3-0 that it would not rule on the adequacy of the EIR.

 Filing date issues

Another issue plaguing   this hearing was the issue of adherence to filing date deadlines for evidence and other paperwork.

“The late filing issue has reached the point of ridiculousness,” stated Roseburg attorney Barbara Brenner of Stoel Rives LLP.  

County Counsel Guarino noted, “The county’s office has no legal obligation (to post all of the procedures and deadlines required in an appeals process).”

The appellates, however, claim that the county has intentionally made the process difficult for them, citing rules such as an informal policy that evidence must be submitted ten days prior to a hearing. “Only after the deadline for submitting evidence was I informed that there was a deadline,”  said LaForest.  

Opening statement and testimony

With the preliminary issues addressed, the board heard opening statements and initial testimony by the appellates.  Many of the previously discussed issues of the fairness of the board and access to information regarding the appeals process and deadlines surfaced again. 

‘It seems that you don’t want to hear the evidence that we have,” stated Karen Rogers of the Ecology Center.

In one response to Rogers’ opening statements, Chairman Gubetta responded, “This is a quasi-judicial hearing and not a sewing circle.”

After further comments, Rogers expressed her dissatisfaction with the hearing, stating, ‘We are being treated harshly here.”

 Appellants’ petition

The Ecology Center and Weed Concerned Citizens assert that they are not opposed to the project, but that they “want it to be the best it can be.”

Their primary claim is that the pollution control  technology that Roseburg has in place does not represents BACT (Best Available Control Technology) and that by installing updated technology, they could reduce the Nox emissions by one half of what the current proposal does. 

They cite letters of concern from both the California Air Resource Board and the California Environmental Protection Agency over the provision of the current project.

Roseburg and the County claim that the EIR is sufficient and appropriate and that delay of the project is economically damaging to the county. 

Lawsuit update

Currently, there is a lawsuit pending against Roseburg Forest Products by the Ecology Center and the Concerned Citizens of Weed.  The case, as of last week, is still in the pre-trial settlement phase and has yet to go to court.

Hearing continues on May 18 at 9 a.m.

The Air Pollution Control District Hearing is scheduled to resume on May 18 at 9 a.m. in the Board of Supervisors Chambers.  

The ATC 040208-B Technical Review and Evaluation Report, response to comments and supporting documents are available for public review from 8am - 5pm, Monday through Friday at the District office at 535 S. Foothill Drive, Yreka. Call Eldon Beck, Assistant Air Pollution Control Officer at 841-4029 for more information.