Deseret Generation and Transmission Co-operative Bonanza Power Plant (Board decision, November 8, 2024)

Plain-English summary

The EAB previously denied review of EPA Region 8's renewal of a Clean Air Act Title V permit for the Deseret Generation and Transmission Co-operative Bonanza Power Plant. The Ute Indian Tribe of the Uintah and Ouray Reservation moved for reconsideration and argued, among other things, that the Board had failed to apply the Supreme Court's Loper Bright decision. The Board held that Loper Bright was not relevant because the petition raised no statutory interpretation issue and because Loper Bright does not govern the Board's administrative review of permit appeals. The Board also rejected arguments that repeated earlier claims, introduced new arguments, or mischaracterized the prior order. The motion was denied because it did not identify a demonstrable error on a material point of law or fact.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(m)
• Outcome: The motion for reconsideration was denied.
• Key point: A motion for reconsideration must identify a demonstrable error in the prior EAB decision, and cannot be used to raise new legal theories or reargue rejected points.

Full text (EPA EAB public release)

                                                                          F I L E D
                                                                              Nov 08, 2024
                                                                         Clerk, Environmental Appeals Board
                                                                         INITIALS ________________________



                  ENVIRONMENTAL APPEALS BOARD
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, D.C.


                                             )
                                             )

In re Deseret Generation and Transmission )
Co-operative Bonanza Power Plant ) CAA Appeal No. 24-01
)
Permit No. V-UO-000004-2019.00
)
)

             ORDER DENYING MOTION FOR RECONSIDERATION

   On September 10, 2024, the Environmental Appeals Board issued an Order Denying

Review of U.S. Environmental Protection Agency Region 8’s renewal of a Clean Air Act Title V

permit. Following the Board’s Order Denying Review, Petitioner, the Ute Indian Tribe of the

Uintah and Ouray Reservation, filed a timely Motion for Reconsideration. See 40 C.F.R.

§ 124.19(m). The Tribe bases its Motion on, among other things, an argument that the Board

“[f]ailed to [p]roperly [a]pply” the U.S. Supreme Court’s decision in Loper Bright Enters. v.

Raimondo, 144 S. Ct. 2244 (2024), to the Order Denying Review. Motion for Reconsideration

at 5 (Sept. 20, 2024). Loper is not relevant to the Board’s decision as there were no questions of

statutory interpretation raised in the petition, and Loper does not apply to the Board’s

administrative review of permit appeals. The Tribe’s other arguments merely repeat arguments

that the Board previously considered and rejected, introduce new arguments that cannot be raised

at this time, or otherwise mischaracterize aspects of the Order Denying Review. The Board

denies the Tribe’s Motion because it fails to identify any demonstrable error based on Loper, or

otherwise, in the Order Denying Review.
 A motion for reconsideration “must set forth the matters claimed to have been

erroneously decided and the nature of the alleged errors.” 40 C.F.R. § 124.19(m). “The Board

reserves reconsideration for cases in which the Board has made a demonstrable error, such as a

mistake on a material point of law or fact.” In re City of Taunton Dep’t. of Pub. Works, NPDES

Appeal No. 15-08, at 1 (EAB June 16, 2016) (Order Denying Reconsideration). A motion for

reconsideration is not an opportunity to raise new legal theories for the first time or to “reargue

the case in a more convincing fashion.” In re Gen. Elec. Co., RCRA Appeal No. 16-01, at 2

(EAB Mar. 7, 2018) (Order Denying Motion for Partial Reconsideration); City of Taunton,

NPDES Appeal No. 15-08, at 1.

   In the Motion for Reconsideration, the Tribe first makes a broad assertion that the Board

erred in failing to apply Loper to the Region’s technical determinations and interpretation of the

law. Motion at 6, 8. But Loper is not relevant to the Board’s decision. In Loper, the Supreme

Court overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837

(1984), which established a framework for federal court review of an agency’s statutory

interpretation and required courts to defer to an agency’s permissible construction of an

ambiguous statute. Loper, 144 S. Ct. at 2254, 2273. The Loper decision holds that federal

courts “must exercise their independent judgment in deciding whether an agency has acted

within its statutory authority, as the APA requires.” Id. at 2273. In so holding, the Supreme

Court provided that “[c]areful attention to the judgment of the Executive Branch may help

inform that inquiry. And when a particular statute delegates authority to an agency consistent

with constitutional limits, courts must respect the delegation, while ensuring that the agency acts

within it.” Id.

                                            -2-

As an initial matter, we note that the Tribe did not preserve or raise a statutory

interpretation challenge in its petition. Rather, the petition alleged that the Region acted contrary

to executive orders on environmental justice, agency policies, and the federal government’s trust

responsibility to tribes. Ute Indian Tribe of the Uintah and Ouray Reservation, Petitioner’s Brief

at 5 (Jan. 3, 2024) (“Pet.”). The Tribe did not argue that the Region violated any of the

provisions of the Clean Air Act (“CAA”). See In re Deseret Generation and Transmission

Coop. Bonanza Power Plant, CAA Appeal No. 24-01, slip op. at 13 (EAB Sept. 10, 2024),

19 E.A.D. ___. Simply put, Loper does not apply, as there was no statutory interpretation issue

raised by the Tribe’s petition.

   The Tribe also fails to recognize that Loper would not apply to the Board’s administrative

review of the Region’s permitting decision in any event. Board precedent establishes that the

principle of “Chevron Deference” does not apply to adjudications by administrative tribunals like

the Board. Chevron established the level of deference that the judicial branch should give to the

executive branch for its statutory interpretations. In re Lazarus, Inc., 7 E.A.D. 318, 350 n.54

(EAB 1997) (“The doctrine of administrative deference as applied by the courts is based on the

Constitutional principle of separation of powers.”) (citing Chevron, 467 U.S. at 866). The Board

has explained that the deference federal courts (previously) afforded to an agency’s statutory

interpretations under Chevron is not applicable to the Board’s review of decisions of individual

components of EPA. See id. at 351 n.55 (“Parties in cases before the Board may not ordinarily

raise the doctrine of administrative deference as grounds for requiring the Board to defer to an

interpretation of statutory or regulatory requirements advanced by any individual component of

the EPA * * * because the Board serves as the final decisionmaker for EPA in cases within the

Board’s jurisdiction.”); In re McLaughlin Gormley King Co., 6 E.A.D. 339, 350 (EAB 1996)
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(stating the Board was under no obligation to defer to an agency interpretation of a statute); In re

Mobil Oil Corp., 5 E.A.D. 490, 509 n.30 (EAB 1994) (“Because the Board serves as the final

decisionmaker for the Agency, the concepts of Chevron and Skidmore deference do not apply to

[Board] deliberations.”). Since Chevron did not apply to the Board’s review of decisions by

other components of the agency, Loper does not change the law applicable or relevant to the

Board’s Order Denying Review.

   Further, the Tribe mistakenly seeks to apply Loper to the Agency’s technical

determinations. The Tribe states that “Loper requires that a reviewing court hear the scientific

evidence and decide on its own whether EPA’s interpretation of the law and science is correct.”

Motion at 5. The Tribe then argues that Loper requires the Board to provide an independent

review of the Region’s technical conclusions. Id. at 6. As stated above, and contrary to the

Tribes’ assertion, Loper concerns court deference to an agency’s legal interpretation of statutes,

not an agency’s factual findings regarding scientific or technical evidence. See Loper, 144 S. Ct.

at 2273 (holding courts “may not defer to an agency interpretation of the law simply because a

statute is ambiguous.”) (emphasis added). Loper did not change the deference courts accord to

agency technical decisions. Indeed, the D.C. Circuit has continued to defer to “EPA’s evaluation

of scientific data within its area of expertise” after Loper. See Huntsman Petrochemical LLC v.

EPA, 114 F.4th 727, 735 (D.C. Cir. 2024). Loper provides no basis for reconsideration of the

Board’s decision with respect to the Region’s technical determinations.

   As to the Tribe’s second argument in its Motion for Reconsideration that the Board

adopted the Region’s “[r]estrictive [v]iew of [p]ermit [c]onditions” and this contradicts federal

regulations, we reiterate that Loper does not apply to the Board’s review of permit appeals, nor

to agency interpretations of its own regulations. Motion at 6. Moreover, the Tribe’s petition
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failed to allege that the permit is inconsistent with the requirements of part 71. See Deseret, slip

op. at 13, 19 E.A.D. at ___. The Tribe cannot make new arguments in a motion for

reconsideration. Gen. Elec. Co., RCRA Appeal No. 16-01, at 2. And the Tribe’s new argument

in the Motion for Reconsideration fails to identify any applicable requirement that the current

permit fails to include. Motion at 6-8.

   In fact, the Board analyzed the Tribe’s arguments advocating for additional Title V

permit conditions in the context of the Tribe’s environmental justice claims, which is the context

in which the Tribe sought additional permit conditions. Deseret, slip op. at 29, 19 E.A.D. at ___.

As stated in the Order Denying Review, Title V permits “must include emissions limitations and

standards, a schedule of compliance, monitoring requirements, and other conditions ‘necessary to

assure compliance with applicable requirements of this chapter.’” Id. at 3-4; see also id. at 13,

17. The Board conducted an extensive analysis of the permit conditions requested by the Tribe

and the Title V regulations and concluded that the applicable law did not give the agency

discretion to include the Tribe’s requested conditions, such as the requested tree planting and

establishment of a future trust fund, in a Title V permit. Id., slip op. at 29-30. In the Motion, the

Tribe argues for additional and unspecified requirements and offers no legal support. Motion at

8 (“The Tribe asserts that the regulations allow, if not require, EPA to incorporate new

information and information omitted from the original Permit but critical to ensure protection of

human health and the environment.”). The Tribe’s Motion merely repackages arguments made

in the Tribe’s petition that were not based on CAA Title V or the implementing regulations, but

on environmental justice executive orders and policies. This is not a basis for reconsideration.

   In the Tribe’s discussion of permit conditions, it reiterates its disagreement with the

Board’s conclusion that the Region’s reliance on the 2013 Ozone Study did not warrant review.
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Motion at 7; Deseret, slip op. at 23-24, 19 E.A.D. at ___ (citing Environ Int’l Corp., Final

Report: 2013 Uinta Basin Winter Ozone Study (Mar. 2014) (A.R. 54)).1 The Tribe’s argument

that the Board’s “reliance on the 2013 Utah Study is egregiously erroneous,” is also based on a

misreading of Loper and the Board’s decision. Motion at 7. As noted above, Loper does not

alter the Board’s longstanding precedent that a petitioner has a particularly heavy burden to

demonstrate error in a permit issuer’s technical determination. See Deseret, slip op. at 25,

19 E.A.D. at ___ (citing In re Peabody W. Coal Co., 12 E.A.D. 22, 33 (EAB 2005); In re

Chemical Waste Management, 6 E.A.D. 66, 80 (EAB 1995)). Here, the Board reviewed the

Region’s environmental justice analysis including its scientific conclusions and found them to be

supported by evidence in the record and explained in the response to comments. Id., slip op.

at 21-26. As the Board noted in the Order Denying Review, “The Tribe has offered no evidence

to support its theory that the temperature inversion has changed. In the absence of any

contradictory evidence in the record, the Board concludes the Region duly considered this issue

and provided a reasoned explanation for its decision.” Id., slip op. at 26.2 The petition failed to

meaningfully address the Region’s explanation for its decision to rely on the 2013 Ozone Study.

   1
   This argument was also proffered in the context of the Tribe’s environmental justice

arguments in the petition for review. Pet. at 18.
2
The Tribe’s argument, raised for the first time in the Motion for Reconsideration, that
“groundwater contamination was caused almost exclusively by air emissions from the stack,” similarly lacks citation to or support in the record, and it comes too late for consideration. Motion at 8 (emphasis omitted); see Gen. Elec. Co., RCRA Appeal No. 16-01, at 2.

                                            -6-

See id., slip op. at 25. In its Motion, the Tribe has not identified any demonstrable error in the

Board’s evaluation of the Region’s factual or technical determinations.

    The Tribe’s third argument regarding environmental justice merely reiterates arguments

previously raised and rejected by the Board. The Tribe again asserts that the permitting decision

is inconsistent with EPA’s environmental justice policy. Motion at 9. The Board fully

considered all of the Tribe’s filings on appeal, the administrative record, and the applicable law.

This included a thorough review of the Region’s environmental justice analysis and the Tribes’

arguments, and the Board concluded that “the Region appropriately evaluated the environmental

justice implications of the permitting action and explained how it exercised the limited discretion

it had under Title V.” Deseret, slip op. at 14-30, 19 E.A.D. at ___. The Tribe has not established

a demonstrable error in the Board’s decision regarding environmental justice.

    In the Tribe’s fourth and final argument in the Motion, it incorrectly asserts that the

Board “summarily rejected” the Tribe’s argument regarding the trust responsibility, and, in

particular, erred in relying on the U.S. District Court ruling in Ute Indian Tribe of the Uintah &

Ouray Indian Rsrv. v. United States Dep’t of Interior, No. 2:21-CV-00573-JNP-DAO, 2023 WL

6276594 (D. Utah Sept. 26, 2023). See Motion at 10. While the Board cited the Ute decision, it

did so after analyzing applicable Supreme Court and Circuit Court precedent. Deseret, slip op. at

31, 19 E.A.D. at ___. As the Board explained, “unless Congress has created a conventional trust

relationship with a tribe as to a particular trust asset, th[e] Court will not ‘apply common-law

trust principles’ to infer duties not found in the text of a treaty, statute, or regulation.” Id.

(quoting Arizona v. Navajo Nation, 599 U.S. 555, 566 (2023)); see also U.S. v. Jicarilla Apache

Nation, 564 U.S. 162, 174 (2011); Morongo Band of Mission Indians v. FAA, 161 F.3d 569, 574

(9th Cir. 1998). The Board explained that the Tribe had not identified any basis for a
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conventional trust relationship with respect to air resources, and cited the Ute decision, which

addressed water resources, as analogous. Deseret, slip op. at 31, 19 E.A.D. at ___. The Board

also recognized a general trust responsibility and determined that the Region fulfilled that

responsibility by complying with the CAA and its implementing regulations. Id., slip op. at 31-

32. The Board concluded that the Tribe had not demonstrated clear error, an abuse of discretion

or that review was otherwise warranted with respect to the Agency’s trust responsibility. Id.,

slip op. at 32. The Board’s consideration of the Tribe’s trust responsibility arguments neither

“summarily rejected” the Tribe’s argument nor was erroneous.3

    While the Tribe expresses disagreement with the Board’s conclusions, it fails to

demonstrate that the Board made any demonstrable error on a material point of law or fact or

otherwise. The Board therefore denies the Motion for Reconsideration.

    3
      The cases the Tribe cites are inapposite. Woods Petroleum Corp. v. U.S. Dep’t of

Interior, 18 F.3d 854, 859 (10th Cir. 1994), aff’d en banc, 47 F.3d 1032 (10th Cir. 1995), Cheyenne- Arapaho Tribes v. U.S., 966 F.2d 583, 588-90 (10th Cir. 1992), and Kenai Oil and Gas, Inc. v. U.S. Dep’t of Interior, 671 F.2d 383, 386-87 (10th Cir. 1982) involved appeals from decisions of Department of the Interior related to oil and gas resources on tribal land for which the agency is a trustee acting in a fiduciary capacity. Mandan, Hidatsa & Arikara Nation v. U.S. Dep’t of Interior, 95 F.4th 573, 583 (8th Cir. 2024) involved a decision by the Bureau of Land Management concerning land held in trust for the benefit of tribes. Here, the EPA is not a trustee of tribal land or resources but a regulatory agency subject to a general trust responsibility, which it fulfilled by complying with applicable laws and regulations. See Morongo Band of Mission Indians, 161 F.3d at 574.

                                              -8-

So ordered.4

                                             ENVIRONMENTAL APPEALS BOARD

   November 8, 2024

Dated: ____ By: ______
Mary Kay Lynch
Environmental Appeals Judge

   4
    The three-member panel deciding this matter is composed of Environmental Appeals

Judges Mary Kay Lynch, Wendy L. Blake, and Ammie Roseman-Orr.

                                       -9-

CERTIFICATE OF SERVICE

   I certify that copies of the foregoing Order Denying Motion for Reconsideration in the

matter of Deseret Generation and Transmission Co-operative Bonanza Power Plant, CAA Appeal No. 24-01, were sent to the following persons in the manner indicated:

By Email:

For Petitioners: For EPA:
Michael W. Holditch Randall H. Cherry Jane W. Gardner Everett Volk Patterson Earnhart Real Bird & Wilson LLP Office of Regional Counsel 1900 Plaza Drive EPA Region 8 Louisville, CO 80027 1595 Wynkoop Street (303) 926-5292 Mail Code: 8ORC-LC-M [email protected] Denver, CO 80202 [email protected] (303) 312-6566
(303) 312-7290
For Deseret Generation and Transmission [email protected] Co-operative: [email protected] Makram B. Jaber W. Dixon Snukals Adriane Busby McGuireWoods LLP Melina Williams 888 16th Street N.W. Suite 500 EPA Office of General Counsel Black Lives Matter Plaza 1200 Pennsylvania Ave NW Washington, DC 20006 Washington, DC 20460 (202) 857-2416 (202) 564-1573 [email protected] (202) 564-3406 [email protected] [email protected]
[email protected]

                                               Jonathan Binder
                                               EPA Office of Enforcement and Compliance
                                               Assurance
                                               1200 Pennsylvania Ave NW
                                               Washington, DC 20460
                                               (202) 564-2516
                                               [email protected]


      Nov 08, 2024

Dated: ____ ______
Emilio Cortes
Clerk of the Board