A three-judge panel at the U.S. Ninth Circuit Court of Appeals on Sept. 2 denied a petition for review of a decision of the U.S. Environmental Protection Agency (EPA) granting Sierra Pacific Industries a prevention of significant deterioration (PSD) permit for construction of a new biomass-burning power plant at its lumber mill in California.
The panel held that the EPA did not act arbitrarily or capriciously in granting this PSD permit to Sierra Pacific. Addressing petitioner Helping Hands Tools’ claims that the EPA was required to consider solar power and a greater natural gas mix as clean fuel control technologies in the best available control technology (BACT) analysis for air pollutants, the panel held that because the EPA properly took the requisite hard look at Sierra Pacific’s proposed design and the key purpose of burning its own biomass waste, the EPA reasonably concluded that consideration of solar or increased natural gas would disrupt that purpose and redefine the source.
Addressing petitioner Center for Biological Diversity’s claims raised in response to the supplemental greenhouse gas BACT analysis, the panel deferred to the agency’s determination because EPA was largely relying on its own guidance, acting at the frontiers of science.
Noted the appeals court ruling: “This is the first time we have reviewed EPA’s doctrine of ‘redefining the source.’ It also appears to be the first time that EPA’s framework for evaluating the best available control technology for greenhouse gas emissions from facilities burning biomass fuels is considered by any circuit in the United States. We hold that EPA did not act arbitrarily or capriciously in granting a PSD permit to Sierra Pacific pursuant to that framework.”
Sierra Pacific owns and operates a lumber manufacturing facility in Anderson, California, situated at the northern end of the Central Valley in Shasta County. In 2010, Sierra Pacific filed an application for a PSD permit with EPA in order to construct a new cogeneration unit at its mill. The new unit was designed to burn biomass fuels in a boiler to produce steam used to turn turbine blades to generate 31 MW and to heat existing lumber dry kilns. Fuel for the unit would come primarily from wood wastes from Sierra Pacific’s own lumber mills, as well as other readily available sources of agricultural and urban wood wastes.
The new boiler replaces a smaller existing boiler at the Anderson Facility. The smaller boiler could burn only 60,000 bone-dry tons (BDT) of the 160,000 BDT of wood waste the Anderson Facility annually produces. The new boiler has the increased capacity to burn up to 219,000 BDT of wood waste. Additionally, the boiler will utilize natural gas for the limited purpose of startup, shutdown, and flame stabilization.
After public comment, EPA issued the PSD permit, and Helping Hand petitioned the federal Environmental Appeals Board for review. In July 2013, the board remanded the PSD permit to EPA for further proceedings on a single ground—that EPA had abused its discretion in not holding a public hearing. EPA issued a final PSD permit notice on April 25, 2014. The Center appealed to the board and the board dismissed for lack of jurisdiction because, in its July 2013 decision, the board specifically stated that it would not require or accept an appeal after the remand. Helping Hand and the Center then filed the petitions for review that the court ruled on with the Sept. 2 decision.
Said the Sept. 2 decision at certain key points:
- “Drawing the line between control technology and redefining the source is a technical determination to which a court should defer to EPA, and there was sufficient justification in the record for EPA to determine that primarily burning biomass from Sierra Pacific’s own wood waste, a co-localized source, was an inherent aspect of the facility’s design.”
- “Though the Center argues that EPA is equipped to proceed with a quantitative analysis of different biomass fuel stocks at Step 1, EPA says it cannot do that based on the current state of the science. Because the agency is acting at the frontiers of science, we must defer. The Center does not clearly explain how EPA’s analysis here is not thorough, rational, and consistent with EPA’s prior guidance on BACT. Sierra Pacific is restricted to the forms of biomass waste readily available to it and cannot clear cut forests just to produce electricity for its lumber mills. EPA did consider the environmental impacts of different biomass fuel stocks, just not in the manner or the level of detail the Center would prefer. Because we must defer to EPA’s interpretation of BACT and its scientific expertise, EPA’s analysis is not arbitrary, capricious, or an abuse of discretion, and we deny the Center’s petition.”
- “The Bioenergy BACT Guidance EPA applied to the greenhouse gas emissions from Sierra Pacific’s new facility is rational and thoroughly consistent with EPA’s prior guidance. The guidance relies extensively on the continually evolving analysis of the environmental effect of different biomass fuels in the ever-developing field of climate-change science. It is not our place to interfere with EPA’s expertise when the record shows that its endeavors were reasonable.”
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