Team No. 45

Case Nos. 14-000123, 14-000124

UNITED STATES COURT OF APPEALS

FOR THE TWELFTH CIRCUIT

SYLVANERGY, LLC,

Petitioner,

v.

SHANEY GRANGER, in her official capacity as

Regional Administrator for Region XIII of the United States Environmental Protection Agency,

Respondent.

AND

SAVE OUR CLIMATE, INC.,

Petitioner,

v.

SHANEY GRANGER, in her official capacity as

Regional Administrator for Region XIII of the United States Environmental Protection Agency,

Respondent.

Consolidated Petitions for Review of an EPA Regional Administrator’s Final Order

PSD Appeal No. 15-0123

BRIEF OF PETITIONER, SAVE OUR CLIMATE, INC.

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TABLE OF CONTENTS STATEMENT OF JURISDICTION 1.

ISSUES PRESENTED 1.

STATEMENT OF THE CASE 2. STANDARD OF REVIEW 3. SUMMARY OF THE ARGUMENT 4. ARGUMENT 5. I. This Court Does Not Need Jurisdiction Over the New Union Air Resources Board’s

Determination that Sylvanergy Required a PSD Permit. 5. A. Pursuant to Section 307(b), the Court Does Not Have Jurisdiction to Review a

State Agency’s Jurisdictional Determination. 7.

II. Sylvanergy’s Wood Pellet Production Facility is a Major Emitting Facility and Therefore Requires a Preconstruction PSD Permit. 7.

A. As a Fuel Conversion Plant that Would Emit 100 tons per year of Pollutants,

Sylvanergy’s Pellet Production Facility is a Major Emitting Facility. 7. B. Sylvanergy’s Facility is a Major Emitting Facility Because it has the Potential to

Emit 250 tons per year of a Pollutant. 9.

III. Biomass-fueled facilities are subject to PSD review as emitters of greenhouse gases. 10.

A. EPA’s Deferral Rule is defunct and would not exempt the Forestdale Biomass Facility even if it were in effect. 13.

B. The potential for carbon neutrality is not a relevant consideration in deciding

whether PSD review applies to a stationary source. 13.

IV. Wood Gasification and Partial Carbon Capture and Storage deserved consideration as BACT. 14.

A. Because wood gasification and partial CCS would not alter Forestdale Biomass

Facility’s fundamental purpose, the technologies should have been considered as BACT. 16.

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B. The plain language definition of Best Available Control Technology under the Clean Air Act allows for consideration of wood gasification and partial carbon capture and storage. 17.

V. EPA Cannot Use Reforestation as BACT. 18.

CONCLUSION 20.

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TABLE OF AUTHORITIES Cases Ctr. for Biological Diversity v. E.P.A.,

722 F.3d 401 (D.C. Cir. 2013) 11, 12. Chemical Mfrs. Ass’n v. EPA,

1995 WL 650098 (D.C. Cir. Sept. 15, 1995) (unpublished) 8. Citizens to Preserve Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) 4. Fairbanks North Star Borough v. United States Army Corps of Engineers,

543 F.3d 586 (9th Cir. 2008) 5, 6. Harrison v. PPG Industries, Inc.,

446 U.S. 578 (1980) 1. Hawkes Co. Inc., v. United States Army Corps of Engineers,

782 F.3d 994 (8th Cir. 2015) 6. Nat’l Min. Ass’n v. United States EPA,

59 F.3d 1351, (D.C. Cir. 1995) 8.

Puerto Rican Cement Co., Inc. v. United States EPA, 889 F.2d 292 (1st Cir. 1989) 5, 6.

In Re: Energy Answers Arecibo, LLC (Arecibo Puerto Rico Renewable Energy Project), 13-09, 2014 WL 1260977 (E.P.A. Mar. 25, 2014) 12. Sierra Club v. Slater,

120 F.3d 623 (6th Cir. 1997) 3. Sierra Club v. United States E.P.A.,

499 F.3d 653 (7th Cir. 2007) 15, 16. Sierra Club v. United States EPA,

762 F.3d 971 (9th Cir. 2014) 1. Utah Chapter of Sierra Club v. Air Quality Bd.,

226 P.3d 719 (Ut. 2009) 16. Util. Air Regulatory Grp. v. EPA,

134 S. Ct. 2427 (2014) 2, 11.

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Upper Blackstone Water Pollution Abatement Dist. v. United States EPA, 690 F.3d 9 (1st Cir. 2012) 3, 4.

Vidisksis v. EPA, 612 F.3d 1150 (11th Cir. 2010) 3. Weiler v. Chatham Forest Products, Inc.,

392 F.3d 532 (2d. Cir. 2004) 9. Statutes 42 U.S.C. § 7475(a)(1) 1, 11. 42 U.S.C. § 7475(a)(4) 15. 42 U.S.C. § 7479(1) 1, 4, 7, 11. 42 U.S.C. § 7479(3) 15, 18-19. 42 U.S.C. § 7602(a), (b) 6. 42 U.S.C. § 7602(k) 19. 42 U.S.C. § 7607(b)(1) 1, 6. Federal Register Deferral for CO2 Emissions From Bioenergy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title V Programs,

76 Fed. Reg. 43490-01 11. Approval and Promulgation of Implementation Plans; Washington: Prevention of Significant Deterioration and Visibility Protection,

80 Fed. Reg. 23721-01 12.

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STATEMENT OF JURISDICTION

Save Our Climate, Inc. (SOC) seeks judicial review of a final decision of Shaney

Granger, Regional Administrator of the United States Environmental Protection Agency (EPA)

for Region XIII. Regional Administrator Granger, granted Sylvanergy a Prevention of

Significant Deterioration (PSD) preconstruction permit pursuant to section 165 of the Clean Air

Act (CAA). 42 U.S.C. § 7475(a)(1). Sylvanergy proposes to construct an electric generating

facility near Forestdale, New Union.

As a United States Court of Appeals, this Court has exclusive jurisdiction to review

actions enumerated in section 307(b)(1) of the CAA and “any other final action of the

Administrator… which is locally or regionally applicable.” 42 U.S.C. § 7607(b)(1). The phrase,

“‘any other final action’… mean[s] exactly what it says.” Harrison v. PPG Industries, Inc., 446

U.S. 578, 589 (1980). Circuit courts review decisions to issue PSD permits pursuant to 42 U.S.C.

§ 7607(b)(1). See e.g. Sierra Club v. United States EPA, 762 F.3d 971, 975 (9th Cir. 2014). The

Regional Administrator’s decision to grant Sylvanergy a PSD permit for the Forestdale facility is

a locally applicable final action. SOC’s actions during the administrative process were timely.

For those reasons, this Court has jurisdiction to review the PSD permit.

ISSUES PRESENTED

1. When a party requests and receives a PSD preconstruction permit for a new source under the Clean Air Act, does this Court have jurisdiction to review an earlier determination by a state agency that the source was required to apply for a preconstruction permit, or is the issue of the Court’s jurisdiction over the earlier decision moot because the party received a final PSD permit over which the Court has jurisdiction?

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2. Is Sylvanergy’s proposed biomass-fueled electric generation and wood pellet production facility a major emitting facility subject to PSD review for either or both of the following reasons: (a) the facility emits 100 tons per year or more of a pollutant and qualifies as a source listed under 42 U.S.C. § 7479(1), or (b) because restrictions on the facility’s hours of operation imposed by a municipality are not practicably enforceable and therefore the facility has the potential to emit 250 tons per year or more of a pollutant? 3. Whether a biomass-fueled facility that emits CO2 and is subject to PSD requirements for other pollutants must, consistent with the Supreme Court’s decision in Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014), apply the best available control technology (BACT) to its CO2 emissions? 4. Whether the New Union Air Resources Board erred by failing to consider partial carbon capture and storage as BACT for Sylvanergy’s CO2 emissions? 5. Whether a forest plan that involves replanting trees but does not limit emissions from the facility and allows pollutants to accumulate in the atmosphere can qualify as a limitation of emissions for the purposes of BACT?

STATEMENT OF THE CASE

This case asks the Court to review the extent of EPA’s obligation under the Clean Air

Act’s prevention of significant deterioration program to limit the amount of CO2—a greenhouse

gas pollutant—emitted from facilities like Sylvanergy’s that burn biomass (tress and wood).

Sylvanergy’s proposed facility in New Union is capable of burning 150,000 tons of biomass fuel

per year to power a wood pellet production plant. Record at 5 (hereafter “R.”). The facility

would have 40 MW electric generation capacity. Id. Among other pollutants regulated under the

CAA, Sylvanergy’s pellet production plant has the capacity to release 110 tons per year of NOx

and 255 tons per year of CO. R. at 5. Running at maximum—96 percent—capacity, the facility

would emit 350,000 tons of CO2 equivalents per year (hereafter CO2 or carbon pollution). Id.

As part of its sight plan approval from the village of Forestdale, Sylvanergy agreed to

operate the production facility no more than 6,5000 hours per year. Id. This limitation can be

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enforced by the village’s building inspector. Id. If followed, the hours per year limitation would

limit to facility to 75 percent capacity. Other than CO and CO2, facility would emit less than 100

tons per year of other regulated pollutants under the 6,500 hours per year limitation. Id. Even

with this limitation, however, the facility would emit 190 tons per year of CO. Id.

Sylvanergy initially requested, and was denied, a PSD non-applicability determination

(NAD) from the New Union Air Resources Board (NUARB). A non-applicability determination

is a statement by the NUARB that Sylvanergy’s pellet production facility would not need a PSD

permit. The NUARB asserted that the proposed facility required a PSD permit. Sylvanergy did

not appeal NUARB’s determination or ask the EPA for a determination.

Sylvanergy then applied for a PSD permit. NUARB issued a draft permit, and SOC

submitted public comments. NUARB issued the PSD permit to Sylvanergy on June 12, 2014.

The PSD permit determined BACT for the facility’s pollutants, including CO2. The NUARB

determined that a sustainable forest plan was the most appropriate form of BACT for CO2. The

NUARB rejected SOC’s assertion that NUARB must consider carbon capture and storage in its

evaluation of BACT for CO2 emissions. R. at 6-7. Both SOC and Sylvanergy filed

administrative petitions for review on July 10, 2014. On June 1, 2015, the EAB denied the

appeals and directed the Region XIII Administrator to publish notice of the decision in the

Federal Register.

STANDARD OF REVIEW

Upon review of an EAB decision, this Court reviews the entire agency action—that is,

both the regional permitting decision and the EAB’s review of the decision. Upper Blackstone

Water Pollution Abatement Dist. v. U.S. EPA, 690 F.3d 9, 20 (1st Cir. 2012). Under the APA, an

administrative determination should be set aside only if the petitioner can show that it is

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arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” Sierra

Club v. Slater, 120 F.3d 623, 632 (6th Cir. 1997). In conducting that evaluation, courts must

consider whether the decision was based on “a consideration of the relevant factors and whether

there has been a clear error of judgment.” Vidisksis v. EPA, 612 F.3d 1150 (11th Cir. 2010)

(quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)). An agency

cannot rely on factors which Congress has not intended it to consider, fail to consider an

important aspect of the problem, or offer an explanation for its decision that runs counter to the

evidence before the agency or is so implausible that it could not be ascribed to a difference in

view or the product of agency expertise. Upper Blackstone, 690 F.3d at 20.

SUMMARY OF THE ARGUMENT SOC first argues that the Court does not need to determine whether it has jurisdiction

over NUARB’s decision to reject Sylvanergy’s request for a non-applicability determination.

The NUARB asserted that it had jurisdiction over Sylvanergy’s proposed pellet production

facility under the PSD permitting program for new sources. Because Sylvanergy responded by

applying for a PSD permit, this Court has jurisdiction over the final permit. The Court does not

need jurisdiction over the NUARB’s initial determination to determine whether Sylvanergy was

required to obtain a PSD permit. Therefore the issue of whether an appellate court can review the

NUARB’s applicability determination is moot.

Next, SOC argues that Sylvanergy’s proposed pellet production facility is a major

emitting facility subject to PSD permitting requirements. Because the facility converts biomass

into pellets it qualifies as a fuel conversion facility and is therefore subject to the100 ton per year

threshold for major sources under 42 U.S.C. § 7479(1). SOC also argues that, regardless of the

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6,500 hour per year operating limitation, the facility has the potential to emit more than 250 tons

per year of CO and is therefore a major emitting facility. Because the operating limitation are not

enforceable by a State or a local pollution control agency, and because the limitation does not

contain monitoring or reporting requirements, the 6,500 hours per year operating limit is not an

effective limitation for the purposes of the Act. The operating limit does not reduce the facility’s

emissions below the 250 ton per year threshold.

SOC argues that the NUARB was correct when it determined that biomass facilities can

qualify for PSD permits. The fact that trees can be regrown does not change the fact that burning

biomass as fuel generates pollutants, including CO2. SOC then argues the NUARB erred by

dismissing carbon capture and storage as BACT for CO2. Finally, SOC argues that the NUARB

erred when it considered reforestation as a BACT. Reforestation does not actually limit a

facilities emissions. And, in the lag time between the release of CO2 and CO2 uptake by growing

trees, the CO2 poses a threat to the environment. NUARB erred by failing to consider the

ineffectiveness of reforestation as BACT for CO2 emissions.

ARGUMENT I. This Court Does Not Need Jurisdiction Over the New Union Air Resources Board’s

Determination that Sylvanergy Required a PSD Permit.

The issue of whether the Court has jurisdiction to review the NUARB’s applicability

determination is moot. In this context, the purpose of seeking review of an agency’s

determination of its own jurisdiction is to determine whether the agency does in fact have the

authority to require a preconstruction permit. In Puerto Rican Cement Co., Inc. v. United States

EPA and Fairbanks North Star Borough v. United States Army Corps of Engineers, the

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complaining parties wanted to avoid obtaining preconstruction permits. Puerto Rican Cement,

889 F.2d 292 (1st Cir. 1989) (PSD permit); Fairbanks, 543 F.3d 586 (9th Cir. 2008) (Clean

Water Act 404 permit). The threshold issue—decided differently in each case—was whether an

agency’s jurisdictional determination was a final agency action for the purpose of judicial

review.

Here, the Court can avoid the morass of the current circuit split. Compare Fairbanks, 543

F.3d 586 (9th Cir. 2008) (no jurisdiction over agency determination) to Puerto Rican Cement,

889 F.3d 292 (1st Cir. 1989) (court has jurisdiction) and Hawkes Co. Inc., v. United States Army

Corps of Engineers, 782 F.3d 994 (8th Cir. 2015) (same). Unlike the courts in Puerto Rican

Cement and Fairbanks, this Court does not need to determine whether an applicability

determination does or does not have legal consequences in the context of preconstruction

permitting. Simply put, the Court does not need jurisdiction over the NUARB’s applicability

determination to decide whether Sylvanergy’s facility requires a PSD permit.

Unlike circumstances in Puerto Rican Cement and Fairbanks, in which the complaining

parties sought judicial review of agency determinations before they obtained preconstruction

permits, Sylvanergy applied for and received a PSD permit. The procedural posture of this case

makes the question of this Court’s jurisdiction over NUARB’s applicability determination

immaterial. This Court has jurisdiction to review a final PSD permit. Therefore, the Court has the

ability to determine whether and to what extent Sylvanergy’s proposed facility is a major source

subject to the CAA preconstruction permitting process.

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A. Pursuant to Section 307(b), the Court Does Not Have Jurisdiction to Review a State Agency’s Jurisdictional Determination.

Even if the Court decided that NUARB’s determination was final for the purposes of

judicial review, the Court does not have jurisdiction to review the decision. In this case, a state

agency—not the Administrator of the EPA—made the applicability determination. This Court’s

jurisdiction extends only to review of “final action[s] of the Administrator.” 42 U.S.C. § 7607(b)

(emphasis added). “Administrator” means “the Administrator of the Environmental Protection

Agency.” Id. at 7602(a). The term “Administrator” does not include a state “air pollution control

agency,” like the NUARB. Id. at 7602(b). For the purposes of judicial review under section

307(b), the NUARB does not stand in the stead of the EPA, and this Court does not have the

ability to review the state agency’s decision.

II. Sylvanergy’s Wood Pellet Production Facility is a Major Emitting Facility and Therefore Requires a Preconstruction PSD Permit.

A. As a Fuel Conversion Plant that Would Emit 100 tons per year of Pollutants,

Sylvanergy’s Pellet Production Facility is a Major Emitting Facility.

Sylvanergy’s proposed wood pellet production facility qualifies as a fuel conversion

plant. Fuel conversion plans that emit 100 tons per year of any pollutant qualify as major

emitting facilities. 42 U.S.C. § 7479(1). Powered by the biomass-fired electricity generation unit,

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the plant would produce fuel pellets from compressed and “densified” wood.1 The production

facility would emit more than 100 tons per year of pollutants regulated under the CAA.

Neither the statute nor the relations define fuel conversion plant. EPA relies on case-by-

case determination of the source category. According to EPA guidance, “applicability for [the

fuel conversion plant] source category is determined by whether a facility changes the state (e.g.,

solid to gas) or form (e.g., process sawdust into a pellet) of a fuel.”2 In this case, the pellet

production facility changes the form of woody biomass from bulk biomass (trees) into pellets.

The production process shows why pellets are distinct from the bulk biomass. Pellets are

a refined product that requires processing. State Bioenergy Primer at 20. Pellets are made of

biomass feedstock that is dried in dryers, ground to size, and further conditioned to remove

moisture before being compressed into pellet form. Wood Pellet Basics.3 The end product is

different than the feedstock, both in form and function. Pellets are more dense, which increases

their energy per unit of weight, and they have a reduced and uniform moisture content. State

Bioenergy Primer at 20. For these reasons, pellets are a more expensive and energy dense fuel

than bulk biomass. Id.; Wood Pellet Basics. Pellets’ higher energy density, low moisture content,

and uniformity allow them to compete with other fuels like oil and propane. State Bioenergy

Primer at 20. These qualities also allow pellet to be used with automated systems. Unlike wood,

pellets are a specialized fuel intended for use with specialized boilers and stoves.

1 State Bioenergy Primer, Chapter 2 “What is Bioenergy” at 20 (hereafter “State Bioenergy Primer) (explaining densification and wood pellet production) (available at www3.epa.gov/statelocalclimate/documents/pdf/bioenergy_chapter2.pdf). 2 Letter from Edward J. Lillis, Chief Permits Programs Branch to George T. Czerniak, Chief Air Enforcement Branch, Region V, re: applicability determination of PSD for Cleveland Electric Inc. Plant in Willoughby, Ohio, May 26, 1992 at 3 (emphasis added). 3 Breakout in Developing a Wood Pellet/ Densified Biomass Industry in Washington State: Opportunities and Challenges; A Report to the Washington State Legislature December 2012. Washington State University Extension Energy Program at 11.

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The difference in form and energy density means that wood and pellets are not

interchangeable fuels. Sylvanergy’s pellet production facility actively transforms bulk biomass

like trees into a specialized fuel with a new form. For that reason, Sylvanergy’s facility qualifies

as fuel conversion plant. The EPA and Sylvanergy are wrong when they assert that the 100 ton

per year threshold does not apply to a pellet production plant.

B. Sylvanergy’s Facility is a Major Emitting Facility Because it has the Potential to Emit 250 tons per year of a Pollutant.

Sylanergy’s proposed wood pellet production facility also qualifies as a major source

because it has the “potential to emit” 250 tons per year of a pollutant. 42 U.S.C. § 7479(1). After

the D.C. Circuit’s decision in Nat’l Min. Ass’n v. United States EPA, the D.C. Circuit vacated

EPA’s regulations that define “potential to emit.” Nat’l Min. Ass’n, 59 F.3d 1351, (D.C. Cir.

1995); Chemical Mfrs. Ass’n v. EPA, 1995 WL 650098 (D.C. Cir. Sept. 15, 1995) (unpublished)

(vacating regulation for PSD and Title V permits). In 1996, EPA published an interim policy. For

the purpose of determining a facility’s potential to emit, EPA will consider a limitation on a

facility’s operation as a reduction in the facility’s potential to emit if the limitation is “federally

enforceable or legally and practicably enforceable by a state or local air pollution control

agency.” EPA Interim Policy on Federal Enforceability Requirement for Limitations on Potential

to Emit, at 3-4 (January 22, 1996). A facility that is physically capable of emitting 250 tons per

year will be “considered a major emitting facility… unless there are legally and practically

enforceable mechanisms in place to make certain that the emissions remain below the relevant

levels.” Weiler v. Chatham Forest Products, Inc., 392 F.3d 532, 535 (2d Cir. 2004).

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In this case, the limitation on Sylvanergy’s proposed pellet production facility is not

legally or practically enforceable by a state or local air pollution control agency. The local

municipality—the Village of Forestdale—is neither a state nor a local pollution control agency.

Sylvanergy has also failed to show that the limit on the hours of operation is practically

enforceable. The record does not disclose if Sylvanergy will report its hours of operation or how

the municipality will monitor and ensure compliance. The bare assertion that a building inspector

can enforce an ordinance does not make certain that enforcement will occur or that emissions

will remain below the relevant levels.

Because the operating limitations are not practically enforceable and cannot be enforced

by the State of New Union or a local pollution control agency, the facility must be considered a

major source for the purpose of obtaining a PSD permit. The pellet production facility is

physically capable of emitting 250 tons of regulated pollutants per year or more. Sylvanergy has

failed to show that any mechanisms are in place to make certain that emissions would remain

below the 250 ton per year threshold. The NUARB was correct to require a PSD permit for

Sylvanergy’s pellet production plant.

III. Biomass-fueled facilities are subject to PSD review as emitters of greenhouse gases.

Sylvanergy has not shown that the EAB erred in affirming NUARB’s decision to subject

the FBF to PSD review as a biogenic stationary source of greenhouse gases. In support of its

position, Sylvanergy simply relies on a defunct deferral rule and an uninspiring policy argument

that is neither statutorily justified nor logically sound. As a result, the Court should affirm the

EAB’s decision on this matter.

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Under the Clean Air Act (“the Act”), parties wishing to construct a major emitting

facility in a NAAQS attainment area must obtain preconstruction approval in the form of a

Prevention of Significant Deterioration (PSD) permit. 42 U.S.C. § 7475(a). The Act defines

major emitting facilities as stationary sources of air pollutants that emit (or have the potential to

emit) more than the statutory threshold of “any air pollutant.” 42 U.S.C. § 7479(1). The air

pollutants referenced are not limited to those criteria pollutants for which NAAQS have been

established, but include each pollutant subject to regulation under the Clean Air Act. See Util.

Air Regulatory Grp. V. EPA, 134 S. Ct. 2427 (2014). Carbon dioxide, a potent greenhouse gas, is

an air pollutant subject to regulation under the Act. See id at 2436-37. In the wake of

Massachusetts vs. EPA (Supreme Court ruling that EPA could regulate greenhouse gases under

the Act), the EPA promulgated regulations to curb tailpipe carbon dioxide emissions. Id at 2437.

That regulatory action triggered EPA’s subsequent regulation of stationary sources of

greenhouse gases through the existing PSD permitting program. Id.

Shortly thereafter, EPA deferred regulation of biogenic stationary sources for three years

(the “Deferral Rule”), from July 2011 through July 2014, citing scientific uncertainty over how

to account for biogenic greenhouse gases’ unique role in the carbon cycle. Ctr. for Biological

Diversity v. E.P.A., 722 F.3d 401 (D.C. Cir. 2013); Deferral for CO2 Emissions From Bioenergy

and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD) and Title

V Programs, 76 Fed. Reg. 43490-01. The deferral rule postponed PSD review of biogenic carbon

dioxide sources that had the potential to emit over the statutory thresholds, but still allowed

regulation of biogenic sources that were "anyway" sources (that is, they would be subject to PSD

review anyway for another regulated pollutant). Ctr. for Biological Diversity, 722 F.3d at 407. In

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2013, the District of Columbia Circuit rejected the deferral rule before it would have expired on

its own terms. See id.

Since 2010, the EPA has solicited stakeholder input regarding its eventual long-term

approach to regulating biogenic carbon dioxide sources. Janet G. McCabe, Addressing Biogenic

Carbon Dioxide Emissions from Stationary Sources (Nov. 19, 2014), (available at

http://www3.epa.gov/climatechange/downloads/Biogenic-CO2-Emissions-Memo-111914.pdf.)

In a 2014 memo, the agency stated its intent to exempt some biogenic carbon dioxide sources

from PSD review in the future. Id. Under that scheme, stationary sources that employ waste-

derived feedstocks or non-waste feedstocks derived from sustainable forest or agricultural

practices would be exempt. Id. However, EPA has not yet implemented those exemptions, so

stationary sources of biogenic carbon dioxide are currently subject to PSD review as if they were

traditional sources. Approval and Promulgation of Implementation Plans; Washington:

Prevention of Significant Deterioration and Visibility Protection, 80 Fed. Reg. 23721-01.

Recent permitting decisions for biogenic stationary sources have required PSD review. In

In Re: Energy Answers Arecibo, LLC (Arecibo Puerto Rico Renewable Energy Project), the

Environmental Appeals Board remanded a permitting decision to a regional EPA authority after

the latter issued a PSD permit for a resource recovery facility without regulating its biogenic

greenhouse gas emissions. 13-09, 2014 WL 1260977, at *23 (E.P.A. Mar. 25, 2014). It follows

that EAB did not err in affirming NUARB’s permitting decision on this point. Sylvanergy holds

the burden of proof to show otherwise, yet it cannot point to any current law to support its

position. Instead, it relies on a vacated deferral rule and a policy argument that is severely flawed

in its logic.

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A. EPA’s Deferral Rule is defunct and would not exempt the Forestdale Biomass Facility even if it were in effect.

After Sylvanergy relied on the deferral rule in front of the EAB, the Board aptly noted

that the D.C. Circuit in Center for Biological Diversity had stricken the rule down. Unfortunately

for Sylvanergy, that court’s decision preceded the commenting period for the draft permit by two

full months.4 The Board’s reasoning was sound, but it missed an important point: even if the FBF

were subject to the deferral rule, the facility would still require a PSD permit due to its status as

an “anyway” source (this status is explained at length previously in this brief).

Without the exemption afforded by the deferral rule, Sylvanergy’s argument has no legal

foundation to stand on. Indeed, implicit in the EPA’s promulgation of the deferral rule is the

notion that biogenic sources would be fully subject to PSD review without the rule.

B. The potential for carbon neutrality is not a relevant consideration in deciding whether PSD review applies to a stationary source.

Without any supporting law, Sylvanergy argues that its facility should be exempt from

PSD review because the FBF will be carbon neutral. Its argument assumes that future carbon

dioxide sequestration in living biomass will offset the emissions from its facility. However, its

logic is flawed. The sequestration of its emissions by future biomass is not guaranteed. That

process is wholly independent from the resource’s harvest and use as a fuel. Where a permit

applicant does not commit to regenerating its biomass feedstock, all of its emissions may remain

in the atmosphere indefinitely. That is an unacceptable outcome under a PSD regulatory

mechanism that exists to limit emissions where control technologies allow for it.

4 The rule was invalidated on July 12, 2013, while NUARB did not open Sylvanergy’s draft permit to public comment until September 12, 2013.

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Furthermore, because sequestration of greenhouse gas emissions in future biomass is not

guaranteed, Sylvanergy’s argument essentially posits that stationary sources should be exempt

from PSD review where their emissions can be sequestered. This is problematic, of course,

because emissions from fossil fuel sources can also be drawn from the atmosphere. There is little

logic in subjecting one to PSD review but creating an exemption for the other based on a quality

that they both possess. Adopting Sylvanergy’s position would require that both biogenic and

fossil fuel sources be exempt, which is clearly unreasonable given the EPA’s settled

interpretation of the Act.

Subjecting biogenic stationary sources to PSD review is very important where, as here, it

is uncertain whether a facility’s carbon emissions will ever be redrawn from the atmosphere.

Through PSD review, that uncertainty can be remedied by applying reforestation as a control

measure. More importantly, it will only have been applied if it survives the five-step BACT

selection process. Other control technologies may be found more effective after making all of the

appropriate considerations.

Ultimately, Sylvanergy has not shown that NUARB’s decision was erroneous. The

vacated deferral rule clearly does not exempt FBF, and Sylvanergy’s policy argument is not

statutorily justified nor logically sound. The Court should affirm the EAB’s decision on this

matter.

IV. Wood Gasification and Partial Carbon Capture and Storage deserved consideration as BACT.

Because wood gasification and partial carbon capture and storage (“partial CCS”) do not

redefine the fundamental purpose of the FBF, they should have been considered by the NUARB

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as potential control technologies. Furthermore, the plain language definition of BACT allows for

their consideration. EAB’s approval of NUARB’s permitting decision to the contrary was plainly

erroneous and inconsistent with the requirements of the Act.

The Clean Air Act defines BACT as the “emission limitation” achievable by “application

of production processes and available methods, systems, and techniques, including fuel cleaning,

clean fuels, or treatment of innovative fuel combustion techniques.” 42 U.S.C. § 7479(3). As a

major emitting facility, FBF must have “the best available control technology for each pollutant

subject to regulation.” 42 U.S.C. § 7475(a)(4). The EPA's long-held position is that BACT

cannot require a significant redesign of the proposed facility such that its fundamental scope—its

purpose—is changed. Sierra Club v. United States E.P.A., 499 F.3d 653, 654 (7th Cir. 2007). A

project’s fundamental scope includes its basic means (here, a biomass power generation plant)

and ends (the production of electricity). See id. To illustrate the rule, applicants for a coal-fired

power plant cannot be required to build a wind farm in its place (a redesign of the project’s

means), or develop energy efficiency resources in lieu of providing electricity service (a redesign

of ends). See EPA, New Source Review Workshop Manual: Prevention of Significant

Deterioration and Nonattainment Area Permitting (1990).

Redesigns are permissible, however, where the facility’s fundamental purpose remains

intact. Sierra Club, 499 F.3d at 656. For example, the Seventh Circuit in Sierra Club v. United

States E.P.A. held that an “adjustment in the design of (a) plant” would be permissible “if it were

no more than would be necessary (to switch) from a dirtier to a cleaner fuel.” Id. By contrast,

where a coal plant is conceived of and designed for the purpose of extracting a specific reserve

of high-sulfur coal to burn on-site (as in the aforementioned case), a BACT mandate to purchase

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low-sulfur coal from distant mines is an impermissible redesign of the project’s fundamental

purpose. Id at 657.

The Supreme Court of Utah adopted and expanded on the reasoning in Sierra Club,

adding that the fundamental scope of a project “must relate to the basic business purpose of the

proposed facility.” Utah Chapter of Sierra Club v. Air Quality Bd., 226 P.3d 719, 733 (Ut. 2009).

According to the court, the business purpose of the proposed facility—a coal-fired power plant—

was simply to operate as “an electric power generating plant fueled by coal.” Id. In light of that

finding, the state permitting authority’s refusal to consider gasification technology as BACT was

deemed impermissible because gasification would not redesign the plant in a way that changed

the high-level business purpose. Id. Importantly, the court also rejected the notion that acceptable

control technologies are limited to those that can be added onto the existing design of a proposed

facility; they also include production processes and systems “that can be ‘designed into’ a

proposed (facility).” Id at 731.

A. Because wood gasification and partial CCS would not alter Forestdale Biomass Facility’s fundamental purpose, the technologies should have been considered as BACT.

Here, wood gasification and partial CCS would not alter the fundamental purpose of

FBF. The project’s high-level business purpose is to generate electricity from wood feedstock

and to produce wood pellets; no other discernable objectives appear in the record. Applying

wood gasification and partial CCS would not alter that purpose by any degree. It would not

change the facility’s feedstock (as in Sierra Club), its location, the end achieved, or any other

fundamental quality of the project. Instead, it would result in changes to the systems and

processes involved—changes that were deemed permissible in both Sierra Club and Air Quality

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Board. It is instructive, too, that gasification was the technology approved for consideration as

BACT in the latter.

B. The plain language definition of Best Available Control Technology under the Clean Air Act allows for consideration of wood gasification and partial carbon capture and storage.

The EAB’s permitting decision also contradicts the plain language of the Act. To

reiterate, BACT is achieved through the “application of production processes and available

methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative

fuel combustion techniques for control of each such pollutant.” According to the case law and

EPA’s interpretation of that language, the only general limitation on this provision of the Act is

that the BACT may not change the fundamental purpose of the facility. Where that does not

occur, however, all “methods, systems, and techniques” listed above, and many more (the use of

“including” is significant), are worthy of consideration as BACT.

In light of the above, the EAB’s refusal to consider wood gasification is plainly

erroneous. Its reasoning—that requiring Sylvanergy to burn wood gas instead of the wood itself

is a redefinition of the plant’s “source”—fails to support its conclusion that wood gasification

would redefine the fundamental scope of the facility itself. Indeed, the two concepts are different;

a redefinition of the source (which the EAB equates to a plant’s fuel) is permissible, while a

redefinition of the fundamental scope is not. Wood gasification, as a clean fuel alternative, is

permissible as BACT under a plain reading of the Act (not to mention under the standard set

forth in Sierra Club, which explicitly allowed for redesigns to accommodate cleaner fuels).

Furthermore, even if wood gasification were considered a change in process rather than a change

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in fuel, as the court in Air Regulatory Board did, it would again be permissible under the plain

language allowing for “innovative fuel combustion techniques.”

Lastly, the EAB based its decision solely on the supposed fuel change caused by wood

gasification and failed entirely to address the partial CCS component of the proposal. Rejecting

the technology without reason is enough to support a reversal of the EAB’s decision. The

Board’s decision is especially faulty, though, given that it wrote extensively about the potential

benefits of partial CCS as a potential control technology.

In summary, because wood gasification and partial CCS do not redefine the fundamental

purpose of the FBF, they should have been considered by the NUARB as BACT. Furthermore,

the plain language definition of BACT allows for the application of these technologies. EAB’s

approval of NUARB’s permitting decision to the contrary was plainly erroneous and inconsistent

with the requirements of the Act.

V. EPA Cannot Use Reforestation as BACT.

With respect to applying reforestation BACT, the EAB and the NUARB make two

serious errors. First, reforestation does not meet the definition of BACT. Second, the EAB failed

to consider the environmental consequences of using reforestation as BACT. Among other

environmental impacts, reforestation does not address the immediate effect of CO2 released as a

result of burning biomass. In terms of carbon emissions, biomass combustion is similar to

burning fossil fuels.

Reforestation can be a useful tool to reduce the amount of CO2 in the atmosphere. That

said, there is a difference between mitigating emissions after the fact and limiting emissions at a

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source. The usefulness of reforestation in mitigating climate change does not mean that

reforestation meets the statutory definition of BACT—“an emission limitation.” 42 U.S.C.

§ 7479(3). Reforestation is not BACT because it does not qualify as an emission limitation. 42

U.S.C. § 7602(k). Reforestation does not “on a continuous basis” limit the “quantity, rate, or

concentration of emissions of pollutants.” Id. In short, reforestation does not limit emissions.

Planting trees will do nothing to staunch the quantity, rate, or concentration of CO2

emissions from Sylvanergy’s facility. Instead, reforestation acts like a sponge used to clean up a

spill. The source releases polluting carbon emissions, and reforestation absorbs the pollution

after the fact. Unlike an emission limitation, a sponge does not stop or reduce the rate of a spill

from a source. As a carbon pollution sponge, the benefits of reforestation doe not accrue for

decades. In the interim, Sylvanergy’s CO2 emissions will accumulate in the environment.

By using reforestation as BACT, the EPA ignores the deleterious environmental

consequences that can result from the lag between the spill and the clean up. As a pollutant, CO2

has an immediate deleterious effect. Each molecule released into the atmosphere traps a little bit

more heat. Unlike carbon capture and storage, reforestation does not prevent or mitigate the

immediate harm of CO2 emissions. Reforestation is not a limit on emissions from a source, and

because of the lag in its efficacy, it is not continuous. Therefore, reforestation does not meet the

statutory definition of BACT.

The environmental consequences of allowing carbon pollution to continue to increase in

the short-term can be disastrous. Governments across the planet have a decision to make about

how quickly to carbon emissions and other GHGs. In addition to the overall amount of green

house gas reductions, the speed of the reduction matters. Reducing emissions to zero over the

course of 200 years would have more disastrous impacts than reducing emissions to zero in 100

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or 50 years. By allowing Sylvanergy to use reforestation as BACT, EPA ignores the

environmental and economic harm that can occur by effectively slowing the overall rate of

reduction of CO2 emissions. EPA’s reasoning in this case allows carbon to continue spilling into

the atmosphere unabated.

Reforestation as BACT sets dangerous precedent under the CAA. Allowing carbon

pollution from biomass generation sources like Sylvanergy’s to accumulate in the near term

could push the climate system past a tipping point beyond which further reductions in

anthropogenic CO2 will not stop global warming. EPA improperly ignores the both the near-

term and potential long-term impacts of its decision to spill CO2 into the atmosphere first and

allow biogenic sources like Sylvanergy to delay clean up until later.

CONCLUSION

For the foregoing reasons, SOC requests that the Court vacate Sylvanergy’s PSD permit.

DATE: December 1, 2015.

Respectfully Submitted, Counsel for Petitioner, Save Our Climate, Inc.