MHA Nation Clean Fuels Refinery (Board decision, June 28, 2012)
In re MHA Nation Clean Fuels Refinery (EAB NPDES Appeal Nos. 11-02, 11-03, 11-04, and 12-03): Petitions dismissed and review denied
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Plain-English summary
The MHA Nation proposed a petroleum refinery on the Fort Berthold Indian Reservation in North Dakota, with wastewater discharges regulated under an NPDES permit. Four petitioners challenged different parts of the permit and the environmental review supporting it. The Board dismissed two appeals because they were filed after the 30-day deadline, denied review of a third because it did not preserve or identify specific challenges, and denied review of the fourth after finding that EPA reasonably evaluated whether the changed feedstock required a supplemental environmental impact statement. The Board also declined to review a sulfide challenge that was not shown to have been preserved during public comment. The order dismissed NPDES Appeals 11-04 and 12-03 and denied review of Appeals 11-02 and 11-03.
Decision snapshot
- Cited authorities: 40 C.F.R. §§ 6.200, 60.102a, 122.2, 122.29, 124.10, 124.13, 124.15, 124.19, 124.20, and parts 1501, 1502, 1505, and 1508; 33 U.S.C. §§ 1311, 1316, 1342, and 1371; 42 U.S.C. §§ 4332 and 7409
- Outcome: Two consolidated appeals were dismissed as untimely, and review of the other two was denied.
- Key point: A permit petitioner must meet filing and issue-preservation requirements before the EAB will review the substance of a challenge.
Full text (EPA EAB public release)
648 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
IN RE MHA NATION CLEAN FUELS REFINERY
NPDES Appeal Nos. 11-02, 11-03, 11-04 & 12-03
ORDER DISMISSING PETITIONS AND DENYING REVIEW
Decided June 28, 2012
Syllabus
Section 511 of the Clean Water Act (“CWA”) requires that the Environmental Pro-
tection Agency (“EPA”) comply with National Environmental Policy Act (“NEPA”) re- quirements when issuing a National Pollutant Discharge Elimination System (“NPDES”) permit to a “new source” as defined in CWA section 306. This consolidated case involves issuance of an NPDES permit (“Permit”) that U.S. EPA Region 8 (the “Region”) issued to the Three Affiliated Tribes, comprising the Mandan, Hidatsa, and Arikara Nation (collec- tively referred to as “MHA Nation”), allowing wastewater discharges from a new source. Four petitioners each filed a petition challenging on different grounds certain aspects of the Permit and parts of the NEPA analysis the Region conducted in connection with the Permit.
Held: Upon examination of the petitions, the Environmental Appeals Board
(“Board”) dismisses two of the petitions on timeliness grounds and denies review of the other two petitions.
(1) NPDES Appeal Nos. 11-04 and 12-03 were filed after the filing deadline
40 C.F.R. § 124.19(a) prescribes. The Board strictly construes threshold procedural re- quirements, such as the timely filing of a petition, and will relax a filing deadline only where special circumstances exist. Both petitions failed to demonstrate special circum- stances. The Board dismisses both petitions on timeliness grounds.
(2) NPDES Appeal No. 11-02 failed to meet threshold procedural requirements,
such as issue preservation, and identification of challenged permit conditions or specific errors in the decisionmaking process for either the Permit or the NEPA analysis. The fail- ure to demonstrate that an issue was preserved, as well as the lack of specificity in a peti- tion, are bases for denying review. The flaws in NPDES Appeal No. 11-02 are fatal and prevent Board consideration. The Board denies review of this petition.
(3) The Environmental Awareness Committee (“EAC”) timely filed NPDES Appeal
No. 11-03 questioning the analysis and information that led the Region to conclude that supplementation of the project’s final environmental impact statement (“FEIS”), in light of MHA Nation’s proposed change in feedstock, was unnecessary, and raising concerns about certain effluent limits for Outfall 002, including sulfide. The arguments EAC raises present the following issues for Board consideration: (a) whether the Region satisfied its NEPA obligations with respect to EIS supplementation; and (b) whether EAC demonstrated that the issue it raises about sulfide warrants review.
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(a) The Region Satisfied Its NEPA Obligations Regarding NEPA
Supplementation
• Contrary to EAC’s allegations, the record clearly shows that the Region
took a “hard look” at the information available and that the Region en-
gaged in extensive expert review before deciding that FEIS supplemen-
tation was unnecessary. The Region’s multiple requests for information
to ensure the sufficiency and adequacy of the air quality analysis, as
well as its comments on the reports MHA provided, demonstrate the
Region’s engagement and commitment to carefully examine available
information in its assessment of the need for supplementation.
• The criterion the Region used to assess the significance of the change
in air emissions due to the processing of a different feedstock was rea-
sonable. The Region used the National Ambient Air Quality Standards
(“NAAQS”) as the criterion to assess the significance of the potential
change in air emissions. This is consistent with the air quality analysis
in the FEIS and the manner in which the Agency evaluates air quality
impacts from pollutant emissions in other contexts. NAAQS are stan-
dards designed to protect public health and welfare. The Board con-
cludes that using NAAQS as the determining factor as to whether the
proposed change is “significant” is appropriate.
• The Region reasonably evaluated potential emissions from individual
air pollutants. The record does not support EAC’s claims that the Re-
gion underestimated nitrogen oxides, sulfur dioxide, and volatile or-
ganic compound (“VOC”) emissions, or that the Region did not con-
sider hydrogen sulfide emissions in its analysis. Instead, the record
shows that the Region exercised its considered judgment in accepting
the emissions estimates MHA Nation provided and considered the vari-
ability in sulfur content, the emissions from flaring, the impacts from
VOC emissions from processing Bakken crude oil, and the need to
evaluate hydrogen sulfide emissions.
(b) EAC Did Not Demonstrate That the Sulfide Issue It Raises Warrants Review
• EAC failed to demonstrate that the issue it raises was preserved for
Board review; therefore, the Board declines to review the Permit on the
basis EAC proposes.
Before Environmental Appeals Judges Kathie A. Stein and
Anna L. Wolgast.
Opinion of the Board by Judge Wolgast:
I. STATEMENT OF THE CASE
This consolidated case of four petitions challenges, each on different
grounds, a Clean Water Act (“CWA”) National Pollutant Discharge Elimination
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System (“NPDES”) permit1 (“Permit”) U.S. Environmental Protection Agency (“EPA” or “Agency”) Region 8 (“Region”) issued to the Three Affiliated Tribes, comprising the Mandan, Hidatsa, and Arikara Nation (collectively referred to as “MHA Nation”), as well as certain aspects of the National Environmental Policy Act (“NEPA”)2 analysis the Region conducted in connection with the Permit. The Permit allows wastewater discharges from a petroleum refinery MHA Nation has proposed to construct and operate on the Fort Berthold Indian Reservation in North Dakota.
For the reasons set forth below, the Environmental Appeals Board (“Board”)
dismisses two of the petitions and denies review of the other two.
II. ISSUES ON APPEAL
The issues the Board must consider are as follows:
A. Did the Region satisfy its NEPA obligations with respect to Environ-
mental Impact Statement (“EIS”)3 supplementation?
B. Did the Environmental Awareness Committee (“EAC”)4 demonstrate
that the sulfide issue it raises warrants review?
III. STATUTORY HISTORY
Section 511 of the CWA requires that EPA, under certain circumstances,
comply with NEPA requirements when issuing an NPDES permit. See CWA
§ 511(c)(1), 33 U.S.C. § 1371(c)(1); see also 40 C.F.R. § 122.29(c). Issuance of an NPDES permit to a “new source,” as defined in CWA section 306,5 requires
1 Under the CWA, persons who discharge pollutants from point sources into waters of the
United States must have an NPDES permit in order for the discharge to be lawful. CWA § 301, 33 U.S.C. § 1311. The NPDES program is one of the principal permitting programs under the CWA. See CWA § 402, 33 U.S.C. § 1342.
2 See infra Parts III, VI.C.1.a (discussing NEPA requirements applicable in this case).
3 See infra Part III (discussing EIS requirements applicable in this case).
4 As explained in more detail later in this decision, the EAC filed NPDES Appeal No. 11-03,
challenging the analysis and information that led the Region to conclude that supplementation of the project’s final EIS was unnecessary, and challenging the effluent limitations in the NPDES permit for Outfall 002, including sulfide. See infra Parts V, VI.C.2.
5 The term “new source” means “any source, the construction of which is commenced after the
publication of proposed regulations prescribing a standard of performance * * * which will be appli-
Continued
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NEPA compliance. See CWA § 511(c)(1), 33 U.S.C. § 1371(c)(1); see also 40 C.F.R. § 122.29(c)(1)(i).
Among other things, NEPA requires that federal agencies proposing “major
federal actions significantly affecting the quality of the human environment” doc- ument the environmental impacts of the proposed action. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C). Once the lead federal agency has determined that the pro- posed federal action may significantly affect the quality of the human environ- ment, the lead agency shall proceed to prepare an EIS.6 See 40 C.F.R. pt. 1502 (Council on Environmental Quality (“CEQ”) regulations); 40 C.F.R. pt. 6 (EPA-specific NEPA regulations). An EIS is a detailed written statement docu- menting the impacts of a proposed federal action. See 40 C.F.R. § 1508.11 (EIS definition promulgated by the (“CEQ”), which applies to all federal agencies). The EIS requirement comprises the heart of NEPA. In addition to compiling detailed information on the environmental impacts of the proposed federal action, the EIS must include adverse environmental effects that cannot be avoided if the proposal is implemented, alternatives to the proposed action, the relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity, and any irreversible and irretrievable commitments of resources that would be involved in the proposed action if it is implemented. NEPA § 102(2)(C)(i)-(v), 42 U.S.C. § 4332(2)(C)(i)-(v).
After an EIS has been prepared, agencies must be alert to new information
or circumstances that may change the initial environmental analysis. Under cer- tain circumstances EIS supplementation may be required. In particular, agencies are required to supplement draft EISs or final EISs (“FEIS”) when “[t]he agency makes substantial changes in the proposed action that are relevant to environmen- tal concerns; or [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1). CEQ regulations also allow for EIS supplementation when the Agency “determines that the purposes of the Act will be furthered by doing so.” Id. § 1502.9(c)(2).7
(continued)
cable to such source,” if such standard is promulgated in accordance with CWA section 306. CWA
§ 306(a)(2), 33 U.S.C. § 1316(a)(2); see also 40 C.F.R. § 122.2 (regulatory definition of “new source”).
6 Sometimes proposed actions require the input of several agencies. The agency responsible
for the main action is known as the lead agency; other agencies are termed cooperating agencies. The CEQ regulations, which implement NEPA, define both the role of the lead agency, 40 C.F.R.
§§ 1501.5, 1508.16, and the role of cooperating agencies, id. § 1501.6.
7 In addition, EPA NEPA regulations require EIS supplementation “[f]or all NEPA determina-
tions [] that are five years old or older, and for which the subject action has not yet been implemented.” 40 C.F.R. § 6.200(h).
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IV. STANDARD OF REVIEW
A. Permit Challenges
In determining whether to review a petition filed under 40 C.F.R.
§ 124.19(a), the Board first considers whether the petitioner has met threshold procedural requirements such as timeliness,8 standing,9 issue preservation,10 and compliance with the standard of specificity for review.11 See 40 C.F.R. § 124.19; see also In re Beeland Group, LLC, 14 E.A.D. 189, 194-95 (EAB 2008) (explain- ing that a petitioner must demonstrate that the threshold procedural requirements for permit appeals are met). Assuming that a petitioner satisfies all threshold pro- cedural obligations, the Board then evaluates the petition to determine if it war- rants review. In re Guam Waterworks Auth., 15 E.A.D. 437, 443 (EAB 2011).
Ordinarily, the Board will not review an NPDES permit decision unless the
permit conditions at issue are based on “a finding of fact or conclusion of law which is clearly erroneous.” 40 C.F.R. § 124.19(a)(1). In addition, the Board may review the exercise of discretion by the permit issuer or an important policy con- sideration.12 Id. § 124.19(a)(2). The Board analyzes petitions for review guided by the caution in the preamble to the part 124 permitting regulations that the Board’s power of review “should be only sparingly exercised.” Consolidated Permit Regu-
8 Under the regulations governing permit appeals, a petition for review must ordinarily be filed
with the Board within 30 days of service of notice of the final permit decision by the permitting authority. 40 C.F.R. § 124.19(a). The 30-day period within which a person may request review begins with the service of notice unless the permitting authority specifies a later date. Id. Where, as here, the filing date falls on a weekend or legal holiday, a petitioner has until the next working day to file the petition. Id. § 124.19(c).
9 A petitioner must establish standing to appeal by demonstrating prior involvement in the
public review process, either by filing written comments on the draft permit or by participating in a public hearing. 40 C.F.R. § 124.19(a).
10 A petitioner must demonstrate that any issues and arguments it raises on appeal have been
preserved for Board review (i.e., were raised during the public comment period or hearing on the draft permit), unless the issues or arguments were not reasonably ascertainable at the time. 40 C.F.R.
§§ 124.13, .19; see, e.g., In re City of Attleboro, 14 E.A.D. 398, 441-42 (EAB 2009); In re City of Moscow, 10 E.A.D. 135, 141, 149-50 (EAB 2001).
11 A petition must meet the standard of specificity for review, and contain, at a minimum, two
essential components: (1) clear identification of the conditions in the permit that are at issue, and (2) argument that the conditions warrant review. In re Puna Geothermal Venture, 9 E.A.D. 243, 274 (EAB 2000) (citing In re Beckman Prod. Servs., 5 E.A.D. 10, 18 (EAB 1994)); accord Beeland, 14 E.A.D. at 195.
12 In reviewing the exercise of discretion by the permitting authority or an important policy
consideration, the Board applies an abuse of discretion standard, which comports with the standards the Administrative Procedure Act establishes for the review of agency actions. See 5 U.S.C. § 706; see also Guam, 15 E.A.D. at 443 n.7.
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lations, 45 Fed. Reg. 33,290, 33,412 (May 19, 1980). This reflects EPA’s policy that favors final adjudication of most permits at the permit issuer’s level. Id.
A petitioner seeking review of a permit provision bears the burden of dem-
onstrating that review is warranted. 40 C.F.R. § 124.19(a)(1)-(2). In order to show clear error, the petitioner must specifically state its objections to the permit and explain why the permit issuer’s previous response to those objections is clearly erroneous, an abuse of discretion, or otherwise warrants review. Guam, 15 E.A.D. at 444; In re City of Attleboro, 14 E.A.D. 398, 406 (EAB 2009).
Finally, a petitioner seeking review of issues that are technical in nature
bears a particularly heavy burden because the Board generally gives substantial deference to the permit issuer on questions of technical judgment. Guam, 15 E.A.D. at 444; Attleboro, 14 E.A.D. at 406; In re NE Hub Partners, LP, 7 E.A.D. 561, 567-68 (EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999). The Board, however, will not defer to the permit issuer on the issues challenged without first examining the administrative record prepared in support of the permit decision and satisfying itself that the permit issuer made a reasoned decision and exercised his or her “considered judg- ment.” In re Ash Grove Cement Co., 7 E.A.D. 387, 417-18 (EAB 1997); accord In re Cape Wind Assocs., LLC, 15 E.A.D. 330 (EAB 2011); In re GSX Servs. of S.C., Inc., 4 E.A.D. 451, 454 (EAB 1992). The permit issuer must articulate with rea- sonable clarity the reasons supporting its conclusion and the significance of the crucial facts it relied upon when reaching its conclusion. E.g., In re Shell Off- shore, Inc., 13 E.A.D. 357, 386 (EAB 2007) (citing In re Carolina Light & Power Co., 1 E.A.D. 448, 451 (Act’g Adm’r 1978)); Ash Grove, 7 E.A.D. at 417 (same). As a whole, the record must demonstrate that the permit issuer “duly considered the issues raised in the comments and [that] the approach ultimately adopted by the [permit issuer] is rational in light of all information in the record.” Attleboro, 14 E.A.D. at 411; NE Hub, 7 E.A.D. at 568.
B. NEPA Challenges
The same threshold procedural requirements that apply to appeals of condi-
tions in final NDPES permits apply to NEPA challenges made in the context of NPDES permit review. In re Carlota Copper Co., 11 E.A.D. 692, 777 (EAB 2004), vacated on other grounds sub nom. Friends of Pinto Creek v. EPA, 504 F.3d 1007 (9th Cir. 2007); see In re Louisville Gas & Elec. Co., 1 E.A.D. 687, 691 (JO 1981) (“[T]he relevant considerations which govern the presiding officer’s scope of review in a case involving an EIS are no different from those which govern a conventional NPDES proceeding involving specific terms and conditions of a permit.”); see also In re Ecoeléctrica, LP, 7 E.A.D. 56, 75 (EAB 1997) (denying petitioner’s challenges to content of an EIS because petitioner failed to adequately preserve such objections for Board review). Therefore, as a prerequisite to Board review of NEPA challenges, a petitioner must file a timely
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appeal, satisfy standing requirements, demonstrate that the issues it raises on ap- peal were preserved for review (unless not reasonably ascertainable at the time), and comply with the standard of specificity.
As with a petition challenging NPDES permit conditions, if all threshold
procedural requirements are met, the Board will examine the petition to determine if the arguments warrant review. In reviewing NEPA challenges, the Board has adopted the so-called “rule of reason” standard employed by federal courts, which the Board has equated to a “reasonableness” standard. Carlota, 11 E.A.D. at 790; In re Dos Republicas Res. Co., 6 E.A.D. 643, 663 (EAB 1996) (finding that the Region’s treatment of a particular alternative met the “rule of reason” standard under NEPA); see Louisville, 1 E.A.D. at 694 (stating that an agency’s actions under NEPA are to be measured against standards of reasonableness and due re- gard must be given to all of the surrounding circumstances). Accordingly, the Board’s role in reviewing NEPA compliance consists of ensuring that the Agency has adequately considered and disclosed the environmental impacts of the pro- posed actions in light of the totality of the circumstances. Carlota, 11 E.A.D. at 790.
V. RELEVANT FACTUAL AND PROCEDURAL HISTORY
In 2004, MHA Nation applied for an NPDES permit from the Region. As
noted above, the Permit would allow discharges from a petroleum refinery MHA Nation has proposed to construct and operate on the Fort Berthold Indian Reser- vation in North Dakota. The proposed refinery qualifies as a new source under the CWA, triggering the need to conduct NEPA review as part of the permitting process.
In this particular case, the project as a whole required involvement of sev-
eral other federal agencies, including EPA. The Bureau of Indian Affairs (“BIA”) was originally the lead agency for NEPA purposes and the Region was a cooper- ating agency.13 BIA, with the Region’s input, determined that the construction of a petroleum refinery would cause significant impacts on the quality of the environ- ment, and that an EIS was required. In light of this determination, BIA and the Region proceeded with the required NEPA analysis.14
13 BIA’s lead status was based on MHA Nation’s request that BIA accept tribally owned land
into trust for purposes of constructing and operating the proposed refinery. Administrative Record (“A.R.”) EPA MHA-011410 (Supplemental Information Report at 2). The Region’s cooperating status was based on MHA Nation’s request that the Region issue an NPDES permit for the proposed refinery.
14 In particular, BIA was concerned with the entire refinery project, while the Region focused
on the impacts associated with the discharge of wastewaters from the proposed refinery.
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Formal scoping for the NEPA analysis began on November 7, 2003, and
concluded in April 2005 with a Formal Scoping Report.15 In 2006, BIA and EPA entered into a Memorandum of Agreement designating each as co-lead agencies for the NEPA analysis of this project. On June 29, 2006, BIA and the Region made available for public comment a draft EIS for the entire project and a draft NDPES permit that would allow wastewater discharges from the proposed refin- ery. The public comment period for the draft EIS and draft NPDES permit closed on September 14, 2006. On August 20, 2009, BIA and the Region issued the FEIS for the project and a revised draft NPDES permit.
On February 4, 2010, MHA Nation notified the Region of its intention to
change the refinery feedstock from synthetic crude oil to Bakken crude oil. Imme- diately thereafter, the Region asked MHA Nation to provide information regard- ing how the feedstock change would affect the preliminary refinery design and crude transportation as described in the FEIS. See Administrative Record (“A.R.”) EPA MHA-010691 to -010748. MHA Nation complied with the Region’s request in March 2011 by submitting a revised emission inventory. A.R. EPA MHA-011233 to -011276 (Addendum: Air Quality Technical Report for the Final Environmental Impact Statement for the Mandan, Hidatsa, and Arikara Nation’s Proposed Clean Fuel Refinery Project) [hereinafter Addendum]. The Region then began evaluating the information MHA provided and requested additional model- ing, including modeling of worst-case scenarios. See A.R. Index at 99-112. Based on the information MHA provided, the Region evaluated whether a supplemental EIS would be necessary before issuing its final NPDES permit decision.
The Region concluded that a supplemental EIS was unnecessary and sum-
marized its findings in a Supplemental Information Report (“SIR”), which the Re- gion completed on July 29, 2011. A.R. EPA MHA-011409 to -011510 [hereinaf- ter SIR]. On August 3, 2011, the Region issued a Record of Decision (“ROD”) documenting its decision to issue the NPDES permit to MHA Nation,16 and on August 4, 2011, the Region issued the final NPDES permit decision. A.R. EPA MHA-011387 to -011408 [hereinafter ROD]; A.R. EPA MHA-01-085 [hereinaf- ter Final Permit]. The Region provided notice in the Federal Register, on August 12, 2011, of its decision to issue the NPDES permit. A.R. EPA MHA-010894; Mandan, Hidatsa and Arikara (MHA) Nation’s Refinery, Notice of Availability of the Record of Decision (ROD), National Pollutant Discharge Elimination System (NPDES) Permit, 76 Fed. Reg. 50,214 (Aug. 12, 2011). The Federal Register notice triggered the 30-day permit appeal period to challenge a permit decision
15 CEQ regulations require that there be an early and open process for determining the scope of
issues to be addressed in an EIS and for identifying the significant issues related to a proposed action. This process is termed “scoping.” 40 C.F.R. § 1501.7.
16 CEQ regulations require the preparation of a concise public record of decision in cases re-
quiring EISs. 40 C.F.R. § 1505.2.
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pursuant to 40 C.F.R. § 124.19(a). See id. The 30-day appeal period ended on September 11, 2011, but the applicable regulations extended the appeal deadline to September 12, 2011. 40 C.F.R. § 124.20(c);17 see also A.R. EPA MHA-011386.
On September 7, 2011, Mr. James Stafslien filed NPDES Appeal No. 11-02
(“Stafslien’s Pet.”), expressing concerns about potential flooding of his property from the proposed refinery. On September 12, 2011, the Environmental Aware- ness Committee, Jodie White, Theodora Bird Bear, and Joletta Bird Bear (collec- tively “EAC”) filed NPDES Appeal No. 11-03 (“EAC Pet.”), challenging the anal- ysis and information that led the Region to conclude that supplementation of the project’s FEIS was unnecessary, and raising concerns about the Region’s consid- eration of effluent limits for Outfall 002, including sulfide.18 On September 19, 2011, Ms. Elise Packineau filed NPDES Appeal No. 11-04 (“Packineau’s Pet.”), raising general concerns about the construction of the proposed refinery and its environmental impacts. On April 9, 2012, Plaza Township Supervisor Mr. Tim Gray, on behalf of Plaza Township, filed NPDES Appeal No. 12-03 (“Gray’s Pet.”), claiming that the Township “should have been better notified” of the NPDES permit and raising concerns regarding the sufficiency of the FEIS.
Both the Region and MHA Nation19 responded to NPDES Appeal
Nos. 11-02, 11-03, and 11-04. See EPA Region 8’s Response to Consolidated Petitions for Review (“Reg.’s Resp.”) (Dec. 20, 2011); MHA Nation’s Response to Petitions for Review (“MHA’s Resp.”) (Dec. 16, 2011). On April 30, 2012, both the Region and MHA Nation filed briefs in response to Mr. Gray’s petition. See EPA Region 8’s Response to Petition of Tim Gray, Plaza Township Supervisor (“Reg.’s Resp. to Gray’s Pet.”); MHA Nation’s Motion to Dismiss (“MHA’s Resp. to Gray’s Pet.”).
17 See also supra note 8.
18 EAC’s petition raised concerns about several of the Permit’s effluent limitations for Out-
fall 002. Specifically, EAC challenged the effluent limitations for biological oxygen demand (BOD), total suspended solids (TSS), chemical oxygen demand (COD), oil and grease, total chromium, and sulfide applicable to Outfall 002. On November 22, 2011, the Region withdrew the effluent limitations for BOD, TSS, COD, oil and grease, total chromium, and phenolic compounds applicable to Outfall
-
The Region then issued a revised draft permit addressing the withdrawn conditions, and reopened
the public comment period, which closed on January 26, 2012. On February 17, 2012, the Board issued an order dismissing, on mootness grounds, the portions of the EAC petition that relate to the withdrawn Permit conditions. In re MHA Nation Clean Fuels Refinery, NPDES Appeal No. 11-03 (EAB Feb. 17, 2012) (Order Dismissing Petition in Part). The only NPDES issue remaining for Board consideration is the concern EAC raises regarding sulfide.19 On November 23, 2011, the Board granted MHA Nation’s request to intervene as a party in
this matter. In re MHA Nation Clean Fuels Refinery, NPDES Appeal Nos. 11-02 through 11-04 (EAB Nov. 23, 2011) (Order Granting Motion to Intervene).
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VI. ANALYSIS
A. Ms. Packineau’s and Mr. Gray’s Petitions
Elise Packineau, a pro se petitioner,20 filed NPDES Appeal No. 11-04,
which the Board received on September 19, 2011,21 seven days after the appeal deadline. See 40 C.F.R. § 124.19(a).22 Mr. Gray, also a pro se petitioner, filed NPDES Appeal No. 12-03 on April 9, 2012, almost seven months after the appeal deadline.
Failure to ensure that the Board receives a petition for review by the filing
deadline will generally lead to dismissal of the petition on timeliness grounds. In re AES P.R., LP, 8 E.A.D. 324, 328 (EAB 1999), aff’d, Sur Contra La Contamina- ción v. EPA, 202 F.3d 443 (1st Cir. 2000).23 The Board strictly construes thresh- old procedural requirements, such as the timely filing of a petition, and will relax a filing deadline only where special circumstances exist. Id. at 329.
The Board has found special circumstances to exist in cases where mistakes
by the permitting authority have caused the delay or when the permitting authority has provided misleading information.24 Delays stemming from extraordinary events, such as natural disasters and response to terrorist threats, or from causes not attributable to the petitioner, such as problems with the delivery service, have
20 A pro se petitioner is a litigant unrepresented by counsel. The Board endeavors to construe
liberally objections raised by parties unrepresented by counsel so as to fairly identify the substance of the arguments being raised. In re Sutter Power Plant, 8 E.A.D. 680, 687 & n.9 (EAB 1999); accord In re Shell Gulf of Mex., Inc., 15 E.A.D. 470, 478 (EAB 2012); In re Envtl. Disposal Sys., Inc., 12 E.A.D. 254, 292 n.26 (EAB 2005); In re New Eng. Plating Co., 9 E.A.D. 726, 730 (EAB 2001). While the Board does not expect such petitions to contain sophisticated legal arguments or to utilize precise technical or legal terms, the Board nonetheless expects such petitions “to articulate some sup- portable reason or reasons as to why the permitting authority erred or why review is otherwise war- ranted.” Sutter, 8 E.A.D. at 687-88 (citing In re Beckman Prod. Servs., 5 E.A.D. 10, 19 (EAB 1994)).
21 Documents are considered filed on the date the Board receives them. Puna, 9 E.A.D. at 273.
22 See supra note 8.
23 Cf. In re Knauf Fiber Glass, GmbH, 9 E.A.D. 1, 5 (EAB 2000) (denying review of several
petitions on timeliness and standing grounds and noting Board’s expectations of petitions for review); In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 127 (EAB 1999) (noting strictness of standard of review and Board’s expectation of petitions); In re Envotech, LP, 6 E.A.D. 260, 266 (EAB 1996) (dismissing as untimely permit appeals received after the filing deadline).
24 See, e.g., In re Kawaihae Cogeneration Project, 7 E.A.D. 107, 123-24 (EAB 1997) (delay
attributable to permitting authority as it mistakenly instructed petitioners to file appeals with EPA Headquarters Hearing Clerk); In re Hillman Power Co., LLC, 10 E.A.D. 673, 680 n.4 (EAB 2002) (permit issuer failed to serve all parties that had filed written comments on the draft permit).
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also led the Board to relax the filing deadline.25
Ms. Packineau’s petition does not present any of the special circumstances
that have led the Board, in other cases, to relax the 30-day appeal rule. In fact, her one-page petition does not address the delay or offer an explanation as to why the petition was filed after the deadline, or why the Board should review the late-filed appeal. One of the “concerns” Ms. Packineau raises is that she was unaware “of any public notices regarding the changes to the ‘Proposed Refinery’ to include the ‘Bakken.’” Packineau’s Pet. This in itself does not explain the late appeal.
Ms. Packineau’s petition indicates that she was on notice of the issuance of
the ROD, which addresses the change in feedstock, the Region’s permit decision, and the deadline for appeal. In her petition, she states that she “[r]eceived [the] EPA Issues Record of Decision and NPDES Permit” – this is the letter that ac- companied the ROD and NPDES Permit announcing that EPA had issued those documents. Packineau’s Pet. This letter also clearly identifies the appeal deadline and provides a link to the Board’s website for additional information on the permit appeals process. See A.R. EPA MHA-011385 to -011386. Ms. Packineau’s failure to demonstrate special circumstances that would justify the filing of an untimely appeal is fatal to her petition. Therefore, the Board dismisses NPDES Appeal No. 11-04 on timeliness grounds.
Similarly, Mr. Gray’s petition fails to demonstrate special circumstances
that would warrant relaxation of the 30-day appeal deadline. The Board is not persuaded by the reasons Mr. Gray provides to justify the late filing. Mr. Gray claims that the Township Board of Supervisors was under the impression that the refinery “was not going to happen.” Gray’s Pet. This is not a special circumstance that justifies a late filing. Mr. Gray also states that “[o]ur board feels we should have been better notified by the tribe or the EPA about this NPDES Permit.” Id. (emphasis added). Mr. Gray does not elaborate, nor is it clear what he means by being “better notified of the NPDES Permit.” His claim is too vague and lacks any specificity to support a claim that special circumstances warranted the late filing.
The record indicates that the Region complied with applicable notification
requirements under part 124.26 The Region states that it announced in the Federal Register and in various newspapers in North Dakota the availability of the draft EIS and draft NPDES permit for public comment. Reg.’s Resp. at 5. Such forms
25 See, e.g., In re Avon Custom Mixing Servs., Inc., 10 E.A.D. 700, 703 n.6 (EAB 2002) (delay
in petition reaching the Board caused by anthrax sterilization process); AES P.R., 8 E.A.D. at 328 (extraordinary circumstances created by hurricane and its aftermath impeded timely filing), 329 (delay in petition reaching the Board attributable to aircraft problems experienced by FedEx).
26 See, e.g., 40 C.F.R. §§ 124.10 (establishing notification and comment period requirements
for draft permits), .15 (establishing notification requirements for issuance of a final permit decision).
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of notice are consistent with governing regulations. See 40 C.F.R.
§ 124.10(c)(2)(i), (c)(4) (identifying method of notice for general outreach regard- ing availability of, and public comment period for, draft permits).27 Here the Township received notice of the draft permit in the manner afforded to the general public. Mr. Gray does not claim that the Township was entitled to a different form of notice.
The Region also states that it mailed written notice of the final permit deci-
sion to MHA Nation and the approximately 200 people who had submitted writ- ten comments or requested notification of the final permit decision. Reg.’s Resp. to Gray’s Pet. at 3. This is also consistent with applicable regulations. See 40 C.F.R. § 124.15(a). The regulations require that the permit issuer “notify the applicant and each person who has submitted written comments or requested no- tice of the final permit decision.” Id. Mr. Gray does not claim that the Township submitted written comments or that it requested notice of the final permit decision.
The vagueness of Mr. Gray’s petition also raises the question of whether
Mr. Gray’s objection even goes to the final permit decision, as opposed to the still-pending permit modification. Mr. Gray’s petition states that he “knows that the comment period ended on January 26th 2012.” As noted earlier in this deci- sion, the Region withdrew some of the permit conditions, issued a revised draft, and reopened the public comment period to address the modified permit condi- tion.28 That comment period closed on January 26, 2012. To the extent that Mr. Gray’s petition raises concerns about the public comment period for the per- mit modification, the issue does not belong in this proceeding. A petition chal- lenging the permit modification proceedings will only be ripe for Board review after the permit issuer issues a final permit decision.
27 Section 124.10 establishes the timing, method and content, and who should be notified of
the issuance of a draft permit and the opportunity to comment on a draft permit. 40 C.F.R. § 124.10. Designated governmental agencies and officials, and certain groups and members of the public, are entitled to receive notice by mail, whereas the general public is only entitled to a general form of notification, such as notice in a daily or weekly newspaper. Id. at § 124.10(c)(1)(i)-(xi) (listing differ- ent entities entitled to notice by mail); id. § 124.10(c)(2)(i), (c)(4) (identifying method of notice for general outreach).
28 See supra note 18.
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In light of the vagueness of Mr. Gray’s petition, and absent any showing of
special circumstances to excuse the late filing, the Board dismisses NPDES Ap- peal No. 12-03 on timeliness grounds.
B. Mr. Stafslien’s Petition
James Stafslien, also a pro se petitioner, timely filed NPDES Appeal
No. 11-02. The one-page petition expresses concerns about potential flooding of his property from the proposed refinery’s wastewater discharges and requests in- stallation of a gate “on the quarter line” to prevent flooding. Stafslien’s Pet.
Fatal flaws in Mr. Stafslien’s petition prevent consideration by the Board.
First, Mr. Stafslien’s petition fails to meet threshold procedural requirements. Mr. Stafslien’s petition fails to demonstrate that the concerns he raises on appeal were raised during the public comment period. As noted above, a petitioner seek- ing review must demonstrate that any issues and arguments he or she raises on appeal have been preserved for Board review, unless the issues or arguments were
not reasonably ascertainable.29 The Board has consistently declined to review is- sues or arguments in petitions that fail to satisfy this basic requirement.30 Adher- ence to this requirement is necessary to ensure that the permit issuer has an oppor- tunity to address potential problems with the draft permit before the permit becomes final, thereby promoting the Agency’s longstanding policy that most per- mit issues should be resolved at the permitting authority level, and to provide predictability and finality to the permitting process. In re New Eng. Plating Co., 9 E.A.D. 726, 732 (EAB 2001). Significantly, Mr. Stafslien’s petition does not claim that the issue he raises was not reasonably ascertainable at the time of the public comment period.
Second, Mr. Stafslien’s petition does not identify any permit conditions that
may warrant review or point to specific errors in the decisionmaking process for either the NPDES permit or the NEPA analysis. As previously noted, a petition must contain, at a minimum, a clear identification of the conditions in the permit that are at issue and an argument that the conditions warrant review. In re Puna Geothermal Venture, 9 E.A.D. 243, 274 (EAB 2000). In addition, the Board ex- pects petitions to articulate some supportable reason or reasons as to why the per- mitting authority erred in its decisionmaking.31 The burden of demonstrating clear error falls on the petitioner, and Mr. Stafslien has failed to meet this burden.
29 See supra note 10.
30 See, e.g., In re Arecibo & Aguadilla Reg. Wastewater Treatment Plants, 12 E.A.D. 97,
116-17, 122 (EAB 2005) (declining to entertain arguments not raised in public comments); New Eng. Plating, 9 E.A.D. at 732-37 (denying review of issues not preserved).
31 See supra note 20.
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In sum, not only does the petition fail to meet important threshold procedu-
ral requirements, such as issue preservation and the standard for specificity, it also fails to provide a basis for Board review by demonstrating clear error by the per- mit issuer. For these reasons the Board denies review of NPDES Appeal No. 11-02.
C. EAC’s Petition
EAC timely filed NPDES Appeal No. 11-03, questioning the Region’s com-
pliance with certain NEPA obligations and challenging certain aspects of the Per- mit. EAC questions the analysis and information that led the Region to conclude that supplementation of the project’s FEIS, in light of MHA’s proposed change in feedstock, was unnecessary. After examination of the arguments EAC raises re- garding NEPA compliance, the Board determines that the issue for Board consid- eration is whether the Region satisfied its NEPA obligations with respect to EIS supplementation.
EAC also challenges the Region’s consideration of sulfide as an effluent
limitation for Outfall 002, and the Board must determine whether EAC has demonstrated that this issue warrants review.
The Board begins its analysis by examining EAC’s NEPA challenges.
1. Did the Region Satisfy Its NEPA Obligations with Respect to EIS
Supplementation?
Before delving into the arguments, the Board first examines applicable prin-
ciples of law that guide its analysis.
a. Applicable Principles of Law
NEPA itself does not address when an agency is required to supplement an
EIS. This requirement is governed by CEQ regulations, which require EIS supple- mentation when “the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or there are significant new circum- stances or information relevant to environmental concerns and bearing on the pro- posed action or its impacts.” 40 C.F.R. § 1502.9(c)(1) (emphasis added). Notably, the regulations do not define what would be considered “a substantial change” or what would be considered “significant new circumstances or information.”
Case law guides the Board’s analysis on this topic. The U.S. Supreme Court
has stated that an agency must apply a “rule of reason” and prepare a supplemental EIS “[i]f there remains ‘major Federal actio[n]’ to occur, and if the new informa- tion is sufficient to show that the remaining action ‘will affec[t] the quality of the human environment’ in a significant manner or to a significant extent not already
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662 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
considered.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 374 (1989) (citing 42 U.S.C. § 4332(2)(C)) (emphasis added). Federal circuit courts have held that the new circumstance must present a “seriously different picture” of the environ- mental impact of the proposed project from that previously envisioned. E.g., Hickory Neighborhood Def. League v. Skinner, 893 F.2d 58, 63 (4th Cir. 1990); Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987).
The standard for assessing the significance of “new circumstances or infor-
mation” or “substantial changes in the proposed action” allows the decisionmaker to exercise considered judgment. Cf. Marsh, 490 U.S. at 375-77 (noting that when the analysis of relevant documents requires a high level of technical expertise, courts must defer to the informed discretion of the responsible federal agencies). An agency need not supplement an EIS every time new information comes to light,32 and not every new circumstance is a “significant new circumstance” requir- ing a supplemental EIS.33 Finally, regardless of the eventual assessment of the significance of the new circumstances or information to determine the need for supplementation, the agency making the determination has a duty to take a “hard look”34 at the environmental consequences of the change or new circumstances. Id. at 385.35
With these principles in mind, the Board examines EAC’s claims.
b. EAC Arguments
Notably, EAC does not argue that the Region was required to prepare a
supplemental EIS. Rather, EAC contends that the analysis that led the Region to
32 Marsh, 490 U.S. at 373; Ark. Wildlife Fed’n v. U.S. Army Corps of Eng’rs, 431 F.3d 1096,
1104 (8th Cir. 2005) (“An agency does not have to provide a SEIS every time new information comes to light; ‘to require otherwise would render agency decisionmaking intractable, always awaiting up- dated information only to find the new information outdated by the time a decision is made.’”); accord Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d. 520, 544 (8th Cir. 2003).
33 Hickory, 893 F.2d at 63; The New River Valley Greens v. U.S. Dep’t of Transp.,
No. 97-1978, slip op. 4 (4th Cir. Sept. 10, 1998) (“The word ‘significant’ carries the weight of this regulation. Without it, NEPA compliance could paralyze executive agencies, forcing them to perpetu- ally reevaluate proposed projects in response to inconsequential tidbits of information * * * .”).
34 Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 185 (4th Cir. 2005) (“What constitutes
a ‘hard look’ cannot be outlined with rule-like precision. At the least, however, it encompasses a thor- ough investigation into the environmental impacts of an agency’s action and a candid acknowledgment of the risks that those impacts entail.”).
35 See also Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976) (“The only role for a court is
to insure that the agency has taken a ‘hard look’ at environmental consequences.”); Hughes River Wa- tershed Conservancy v. Glickman, 81 F.3d 437, 443 (4th Cir. 1996) (stating that a court examining the sufficiency of an agency’s environmental analysis under NEPA must determine whether the agency has taken a “hard look” at an action’s environmental impacts).
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conclude that FEIS supplementation was unnecessary is flawed because the Re- gion did not fully evaluate the environmental impacts of the change in feedstock. EAC Pet. at 7. To support this contention, EAC identifies alleged flaws in the SIR
– a sixteen-page, single-spaced document that summarizes the Region’s evalua- tion and consideration of the change in feedstock and the Region’s decision not to supplement the FEIS.36
EAC does not challenge the Region’s entire SIR analysis.37 EAC only takes
issue with the air quality component of the SIR, arguing that the Region did not take a “hard look” at the air emission data MHA Nation provided before deciding that a supplemental EIS was unnecessary. Id. at 8-10. According to EAC, the Re- gion conducted its analysis in a short amount of time,38 did not seek an indepen- dent evaluation of relevant information,39 failed to discuss certain relevant infor-
36 While neither NEPA nor its implementing regulations require the use of a SIR to document
an agency’s decision not to supplement an EIS, federal courts have recognized agency use of SIRs and similar documents for such purposes. Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 565-66 (9th Cir. 2000) (“Supplemental Information Reports are nowhere mentioned in NEPA or in the regula- tions implementing NEPA promulgated by the Council on Environmental Quality. Courts nonetheless have recognized a limited role within NEPA’s procedural framework for SIRs and similar ‘non-NEPA’ environmental evaluation procedures. Specifically, courts have upheld agency use of SIRs and similar procedures for the purpose of determining whether new information or changed circumstances require the preparation of a supplemental EA or EIS.”); see, e.g., Marsh, 490 U.S. at 383-85 (upholding Army Corps of Engineers’ use of a SIR to analyze significance of new reports questioning the environmental impact of a dam project); Friends of the Bow v. Thompson, 124 F.3d 1210, 1218-19 (10th Cir. 1997) (upholding use of a SIR to evaluate significance of new survey of area to be logged).
37 The SIR evaluates several factors that are expected to be affected by the proposed change in
feedstock. The factors include: (1) changes to the refinery design; (2) crude oil transportation; (3) traf- fic considerations; and (4) environmental consequences. The environmental consequences category includes: (1) change in air quality; (2) groundwater quality and underground injection; (3) spills and emergency response; (4) surface water quality; (5) solid and hazardous waste; (6) vegetation and wet- lands; (7) wildlife, threatened and endangered species; (8) climate change; and (9) environmental jus- tice and socioeconomic impacts. SIR at 3-13.
38 EAC Pet. at 4 (claiming that the Region conducted its analysis in less than two months).
39 EAC Pet. at 9-10 (noting that the Region did not hire an independent contractor).
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664 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
mation in the SIR,40 relied on flawed information,41 and underestimated air emissions.42
In light of these allegations, the Board examines whether the Region satis-
fied its NEPA obligations regarding EIS supplementation by taking a “hard look” at available information before deciding that supplementation of the FEIS was unnecessary, by reasonably assessing the significance of the change in air emis- sions due to the change in feedstock, and by evaluating the potential emissions from individual air pollutants.
c. The Region Took a “Hard Look” at the Information Available
Contrary to EAC’s allegations, the record clearly shows that the Region
took a hard look at the information available, carefully scrutinized the information MHA Nation provided, and engaged in extensive expert review before determin- ing that the change in feedstock did not require supplementation of the project’s FEIS.
The record shows that the Region held meetings, consulted, and requested
information from MHA Nation and its contractors on several occasions before making a final determination that the FEIS did not require supplementation. The information exchange process began in early 2010 and continued through mid 2011,43 and included: (1) the Region’s request on March 24, 2010, that MHA Na- tion update the air emissions information in light of comments raised during the public comment period and the change in feedstock, see A.R. EPA MHA-010691 to -010748; (2) revised emission inventory estimates provided by MHA Nation, see A.R. EPA MHA-011233 to -011276 (Addendum); (3) formal meetings be- tween the Region and MHA Nation and its contractors to discuss data MHA Na- tion submitted in response to the Region’s request, see A.R. EPA MHA-011226
40 EAC Pet. at 14-17. EAC argues that the Region provided no explanation in the SIR as to
why the expected increase in emissions does not constitute a significant change in impacts, id. at 6, and points to alleged discrepancies between the conclusions in the SIR and assumptions used in the FEIS that the Region allegedly failed to address. Id. at 14-17. In particular, EAC claims that the Re- gion failed to address why the potential change in status from “minor” source to “major” source is not a significant change that would trigger the need for supplementation and why the estimated increase in sulfur dioxide (“SO2”) emissions and exceedance of the new SO2 National Ambient Air Quality Stan- dard (“NAAQS”) are not significant changes requiring a supplemental EIS. Id.
41 EAC Pet. at 13 (claiming that the Region called into question the information MHA Nation
provided in the Air Quality Modeling Update, and yet the Region relied on that information to deter- mine the need for FEIS supplementation).
42 EAC Pet. at 6-7, 10-13 (alleging flaws in air emission estimates for SO , nitrogen oxides
2
(“NOx”), and volatile organic compounds (“VOCs”) that led to underestimation of emissions).
43 See A.R. Index at 99-112; Reg.’s Resp. at 25-27 (providing detailed explanation of docu-
mentation and evaluation process on air quality impacts associated with change in feedstock).
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to -011232 (May 2011); (4) revised air quality modeling results, see A.R. EPA MHA-011310 to -011322 (Air Quality Modeling Update for the Final Environ- mental Impact Statement for the Mandan, Hidatsa and Arikara Nation’s Proposed Clean Fuels Refinery Project (May 2011)) [hereinafter Air Quality Modeling Up- date];44 (5) comments from the Region to MHA Nation and its contractors on the Air Quality Modeling Update, see A.R. EPA MHA-010885 to -010892 (May 2011);45 (6) June 2011 revised air quality modeling update from MHA Nation to address Region’s comments, see A.R. EPA MHA-011368 to -011382 (Air Quality Modeling Analysis – Air Quality Modeling Update for the Final Environmental Impact Statement for the Mandan, Hidatsa and Arikara Nation’s Proposed Clean Fuels Refinery Project (June 2011)) [hereinafter Revised Air Quality Modeling Update];46 (7) the Region’s request that MHA Nation model a worst-case scenario for the National Ambient Air Quality Standards (“NAAQS”) 1-hour average and 24-hour average sulfur dioxide (“SO2”) impacts, see A.R. EPA MHA-011484 to -011489;47 and (8) worst-case scenario results from MHA Nation, see A.R. EPA MHA-011480 to -011490.
In addition, as part of its analysis, the Region updated the summary of air
impacts tables published in the FEIS. The new tables include updated information on existing air quality, more refined design and operation information, and pro- jected emissions from additional refinery units that would be needed to refine the Bakken crude. See Reg.’s Resp. at 27 (citing A.R. EPA MHA-011409).48
44 See Reg.’s Resp. at 25 (explaining that the Air Quality Modeling Update report addresses
changes in the proposed refinery emissions and updates ambient air quality data since the 2007 air quality modeling performed for the FEIS; also noting that the updated air modeling uses an updated air quality model from the FEIS version, which includes a modeling analysis of the 1-hour average NAAQS for SO2 and nitrogen dioxide (“NO2”)).
45 See Reg.’s Resp. at 26 (explaining that Region’s comments expressed concerns with the
updated modeling report, including use of incorrect background concentration information for model- ing 24-hour average particulate matter with a nominal aerodynamic diameter of less than 2.5 microme- ters (“PM2.5”), and need for additional information to calculate PM2.5 emissions inventory, document frequency of intermittent SO2 emissions from refinery, and determine whether the EPA’s guidance on 1-hour NO2 modeling on intermittent emissions applied to the refinery).
46 See Reg.’s Resp. at 26 (explaining that the Revised Air Quality Modeling Update included
corrections to the background PM2.5 concentrations, revisions to the PM2.5 emissions inventory, correc- tion in the calculation of the SO2 modeled impacts, and a more detailed description and justification for the treatment of the flare emissions as an intermittent source to be excluded in the modeling of the NAAQS 1-hour average SO2 impacts).
47 See Reg.’s Resp. at 27 (explaining that the Revised Air Quality Modeling Update used the
standard EPA modeling guidance for modeling intermittent emissions, such as flares, and that the worst-case scenario modeling was conducted to assess the sensitivity of the model for scenarios with increased flaring).
48 The SIR’s air quality analysis includes an evaluation of updated air emission calculations
that take into account potential emissions from the additional refinery units needed to refine Bakken
Continued
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666 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
The bulk of the analysis appears to have occurred within a timeframe of
three to four months (i.e., between March and July 2011), a short period of time according to EAC. Given the record of engagement detailed above, the length of time during which the Region’s analysis took place provides no basis to conclude that the Region did not engage in a serious and careful evaluation of potential changes to air quality from air emissions associated with the proposed change in feedstock. In this particular case, the record paints a far different picture than the one EAC portrays and clearly shows that the Region took its responsibility to take a “hard look” at the change in air emissions seriously. The Region’s multiple re- quests for information to ensure the sufficiency and adequacy of the data, as well as its comments on the reports MHA provided, demonstrate the Region’s engage- ment and commitment to carefully examine available information and determine the need for supplementation.
d. The Criterion the Region Used to Assess the Significance of the
Change in Air Emissions is Reasonable
The Region used the NAAQS as the criterion to assess the significance of
the potential change in air emissions from the processing of a different crude oil.49 Specifically, whether emissions for certain air pollutants would exceed the NAAQS became the determining criterion in the Region’s evaluation of the need for EIS supplementation.
The SIR analyzed the increases in emissions and in ambient air concentra-
tions for nitrogen dioxide (“NO2”), carbon monoxide (“CO”), particulate matter (“PM10/PM2.5”), volatile organic compounds (“VOCs”), and SO2 based on the change of feedstock from synthetic crude to Bakken crude oil. See SIR tbls. 3-4.50 While the evaluation of air emissions indicates that individual pollutant emissions
(continued)
crude and a modeling analysis of the projected emissions from the refinery using Bakken crude as feedstock. See SIR at 7. Particularly, the SIR compares potential air emissions from the proposed refinery processing Bakken oil with the emissions expected from processing synthetic crude oil for five pollutants (i.e., NO2, carbon monoxide (“CO”), PM10 and PM2.5, SO2, and VOCs) and compares expected changes in air quality concentrations between Bakken and synthetic crude oil in relation to the NAAQS for four pollutants (i.e., NO2, CO, PM, and SO2). Id. tbls. 3-4.
49 The NAAQS are air quality standards for particular pollutants “measured in terms of total
concentration of a pollutant in the atmosphere.” Office of Air Quality Planning & Standards, U.S. EPA, New Source Review Workshop Manual C.3 (draft Oct.1990) (“NSR Manual”). EPA has set NAAQS for six principal pollutants (also known as “criteria pollutants”): sulfur oxides (“SOx”), NOx, CO, PM, lead, and ozone. See 40 C.F.R. pt. 50.
50 See SIR at 7 tbl. 3 (showing estimated changes in annual emissions between conditions in
FEIS and SIR for NO2, SO2, CO, PM2.5/PM10, and VOCs); id. at 8 tbl. 4 (showing estimated changes in air quality concentration between conditions considered in FEIS and SIR and comparing them to the NAAQS for NO2, SO2, CO, and PM2.5/PM10).
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would increase due to the additional units required to process the Bakken crude oil,51 the Region concluded that a change in feedstock from synthetic crude oil to Bakken will not significantly change the impacts the proposed refinery may have on air quality because ambient air concentrations are expected to stay below the NAAQS.52
EAC implies that other criteria should have been used to assess the signifi-
cance of the change in air quality due to the change in feedstock, such as the percentage increase in individual pollutants. It also suggests that the categoriza- tion of the refinery as a “minor” or “major” source under the Clean Air Act’s (“CAA”) Prevention of Significant Deterioration (“PSD”) program should have played a more significant role. Specifically, EAC claims that the SIR is flawed because it does not explain why the potential change in status of the refinery from a “minor” to “major” source53 and the expected increases in individual pollutant
51 The Region estimates that several other units will be needed for the refinery to be able to
process Bakken crude oil, such as a vacuum heater, two decant oil tank heaters, a desalter, desalter brine disposal facilities, and additional air pollution controls. SIR at 4. The Region notes, however, that “[f]or most environmental resources and issues of concern, the environmental analysis for a refin- ery using Bakken crude is similar to that of a refinery using * * * synthetic crude.” Id. In this case, the Region reasons that the refinery is still projected to be a relatively small refinery processing light, sweet crude; the refinery will remain in the same location with the same general site layout; no in- crease in output capacity is expected; and the new process units are expected to fit within the existing site boundaries. Id.
EAC claims that modifying the refinery design to add new process units will possibly require a
change in the refinery’s capacity. EAC Pet. at 15. Other than this conclusory statement, EAC has not provided any evidence that would indicate that this will be the case. In addition, nothing in the record suggests that MHA Nation intends to increase production capacity.
52 Modeling projected the SO 1-hour standard to be below the NAAQS under normal condi-
2
tions; however, worst-case scenario modeling indicates that the standard may be exceeded under unu- sual conditions. SIR at 7. Specifically, the SO2 1-hour standard is expected to be exceeded if the flare operates more frequently than anticipated and both the sulfur recovery unit and the back-up unit are down at the same time. Id.; ROD at 11.
According to the Region, this worst-case scenario, modeled for uncontrolled flaring conditions
(i.e., continuous flaring for a whole year (8760 hours/year) during worst-case meteorological condi- tions and with both sulfur recovery units inoperable), is highly unlikely to occur. Reg.’s Resp. at 28; SIR at 8 tbl. 4 n.6. The Region also states that “no refinery operates in this mode except during short-term situations.” Reg.’s Resp. at 31. As explained in more detail below, see infra Part VI.C.1.e.ii, to address concerns about the variability of sulfur content of Bakken crude, MHA Nation proposed the installation of an additional redundant sulfur recovery unit to process potentially increased sulfur emis- sions. For additional discussion of other SO2 arguments EAC makes, see infra Part VI.C.1.e.ii.
53 In 2005, before the FEIS was issued, the Region made a nonapplicability determination
under the CAA concluding that the proposed refinery was a “minor” source and would not need a CAA PSD permit. See A.R. EPA MHA-010692. In 2010, after the FEIS was issued and MHA Nation pro- posed to change the feedstock to Bakken crude, the Region requested information from MHA Nation and withdrew the nonapplicability determination because the preliminary nature of the design did not
Continued
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emissions do not constitute significant changes in impacts that would trigger EIS supplementation.54
The Board finds the Region’s reliance on NAAQS compliance to be a rea-
sonable indicator of the significance of the change in feedstock. Ensuring that emissions from the proposed refinery would stay below the NAAQS is consistent with the air quality analysis in the FEIS55 and the manner in which the Agency evaluates air quality impacts from pollutant emissions in other contexts.56
The Region’s decision to assess the significance of the change in feedstock
based on the expected changes in air quality concentration of criteria pollutants
(continued)
allow the Region to make a determination of PSD applicability at the time. Id.; SIR at 9. Later on, the Region recommended that MHA Nation apply for a PDS permit so that the Region could obtain the information needed to determine whether the proposed refinery will be subject to PSD requirements. See id.; A.R. EPA MHA-010877 to -010878.
EAC places significant weight on the Region’s withdrawal of its PSD nonapplicability determi-
nation, claiming that the Region failed to explain why the potential change in status from “minor” source to “major” source is not a significant change that would trigger EIS supplementation. EAC Pet. at 14, 15-16. The Region explains that the withdrawal does not constitute a finding by the Agency that a PSD permit was required for CAA purposes or that air impacts were significant for NEPA purposes. Reg.’s Resp. at 23.
54 EAC also claims that the expected increases in individual pollutant emissions are significant
in absolute terms and that the Region failed to explain why these expected increases in pollutant emis- sions do not constitute a significant change in impacts. EAC Pet. at 6, 16 (noting that the change in crude oil would increase NOx by 56%, PM by 131%, and SO2 by 57%). The Region notes that esti- mated air emissions have increased for several parameters between the draft EIS, the FEIS, and the SIR, but that the overall air quality impacts have remained consistently below the NAAQS. Reg.’s Resp. at 27-28.
55 One of the main factors used in the FEIS to evaluate the potential effects of air pollutant
emissions from the proposed refinery was the impact on the NAAQS. See FEIS at 4-108 (explaining that “[a]n air quality analysis for the proposed refinery project was conducted to model the impact the project would have on the NAAQS.”); id. at 4-137 (noting that “[t]he modeled results showed the potential emissions of criteria pollutants from the refinery are below all NAAQS”). Other factors eval- uated in the FEIS included the PSD increments for the Class I and Class II areas, the Class I Air Quality Related Values, and the concentration of Hazardous Air Pollutants in the project and surround- ing areas.
Even EAC states in its petition that “the FEIS’ conclusion that the refinery would have negligi-
ble impacts on the quality of air was based on the finding that the potential emissions of criteria pollutants from the refinery are below all NAAQS.” EAC Pet. at 5 (emphasis added).
56 The Agency has used the NAAQS in the context of environmental justice as an indicator
that Agency action will not result in disproportionately high and adverse human health or environmen- tal effects on minority and low-income populations residing near a proposed facility. See, e.g., In re Avenal Power Ctr., LLC, 15 E.A.D. 384, 399 (EAB 2011); In re Shell Offshore, Inc., 13 E.A.D. 357, 404-05 (EAB 2007); In re Knauf Fiber Glass, GmbH, 9 E.A.D. 1, 16-17 (EAB 2000); In re Ash Grove Cement Co., 7 E.A.D. 387, 413-14 (EAB 1997).
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and whether those emissions exceed the NAAQS, as opposed to focusing on the percentage increase in emissions of individual pollutants, does not strike the Board as unreasonable. Neither NEPA nor its implementing regulations offer gui- dance as to what is considered to be a “significant new circumstance” or a “sub- stantial change,” leaving such determination to the discretion of the lead agency. In this case the Region, exercising its technical judgment and informed discretion, decided to use the NAAQS as the criterion for its determination of whether the change in emissions constitutes a “substantial change” or a “significant new cir- cumstance” warranting supplementation.
NAAQS are standards designed to protect public health, including the
health of “sensitive” populations such as asthmatics, children, and the elderly,57 with an adequate margin of safety, and to protect public welfare, including protec- tion against visibility impairment and damage to animals, crops, vegetation, and buildings.58 Therefore, using compliance with the NAAQS as the determining fac- tor as to whether the proposed change in feedstock is significant strikes the Board as appropriate.59 The Board has no reason, and EAC has provided none, to sec- ond-guess the Region’s determination.
In addition, EAC’s suggestion that the ultimate characterization of the pro-
posed refinery as a “major” or “minor” source for CAA PSD permitting purposes should have played a more significant role in the Region’s analysis is unpersua- sive and lacks support. The ultimate characterization of the proposed refinery does not appear to have been a factor used in the FEIS to evaluate the impact of
57 These are known as “primary standards.” See CAA § 109(b)(1), 42 U.S.C. § 7409(b)(1); see
also AES P.R., 8 E.A.D. at 351 (noting that primary NAAQS are health based standards, designed to protect public health with an adequate margin of safety, including sensitive populations such as chil- dren, the elderly, and asthmatics.); CAA § 109, 42 U.S.C. § 7409 (under section 109 of the CAA, primary NAAQS are “ambient air quality standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health”).
58 These are known as “secondary standards.” See CAA § 109(b)(2), 42 U.S.C. § 7409(b)(2).
59 This is consistent with Board practice, in the context of PSD permit appeals, of upholding a
permit issuer’s environmental justice analysis based on a proposed facility’s compliance with the rele- vant NAAQS. In re Shell Gulf of Mex., 15 E.A.D. 103, 156 (EAD 2010) (stating that the “Board relies on and defers to the Agency’s cumulative expertise when upholding a permit issuer’s environmental justice analysis based on a proposed facility’s compliance with the relevant NAAQS in a PSD ap- peal”). The Board has stated that “[i]n the context of an environmental justice analysis, compliance with the NAAQS is emblematic of achieving a level of public health protection that, based on the level of protection afforded by a primary NAAQS, demonstrates that minority or low-income populations will not experience disproportionately high and adverse human health or environmental effects due to exposure to relevant criteria pollutants.” Id. at 74.
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pollutant emissions on ambient air quality and human health.60 See FEIS at 4-137, 4-146 (concluding that the proposed refinery would have negligible impacts on air quality and the human health of the local and area communities). Therefore, ab- sent any evidence to the contrary, the Board agrees with the Region that whether the refinery is subject to PSD permit regulations is a distinct and separate inquiry from the Region’s obligation to evaluate air impacts for NEPA purposes and is not controlling as to whether any increase in air emissions of criteria pollutants con- stitutes a “substantial change in the proposed action” or “significant new circum- stances” that requires EIS supplementation.
Based on all the above, the Board concludes that the criterion the Region
used to assess the significance of the change in air emissions is reasonable. Fur- thermore, because the increase in air emissions associated with refining Bakken crude oil is expected to stay below the NAAQS, and nothing in the record sug- gests that this determination was based on flawed information,61 the Board finds that it was reasonable for the Region to conclude that the proposed change will not “affect the environment in a significant manner or to a significant extent not already considered,” and therefore, supplementation of the project’s FEIS was unnecessary.
e. The Region Reasonably Evaluated Potential Emissions from In-
dividual Air Pollutants
EAC further claims that the Region did not adequately analyze the impact
of nitrogen oxides (“NOx”), SO2, and VOCs because the estimated emissions for each of these pollutants were based on wrong assumptions that underestimated pollutant emissions. EAC Pet. at 6-7, 10-13. EAC also claims that the Region never considered or analyzed the possibility of increased hydrogen sulfide emis- sions and potential exposure associated with the processing of a crude oil with higher sulfur content. Id. at 13.
60 While the FEIS does acknowledge the Region’s nonapplicability determination (i.e., charac-
terization of the refinery as a “minor” source at the time), the FEIS also mentions that “an increase in the proposed refinery’s emissions due to any modifications could trigger additional permitting require- ments for applicability of the PSD program.” FEIS at 4-102.
61 As noted earlier, see supra notes 41-42, EAC also claims that the Region relied on flawed
information. To support this claim, EAC argues that the Region’s withdrawal of the nonapplicability determination, see supra note 53, called into question the information MHA Nation provided in the Air Quality Modeling Update, and yet, the Region relied on that information to determine the need for FEIS supplementation. The Board has examined the withdrawal letter and related subsequent commu- nications, see A.R. EPA MHA-010691 to -010748, -010877 to -010878, and nothing in those docu- ments suggests that the information MHA Nation provided should not have been used to evaluate exceedances of the NAAQS. In addition, this argument fails to acknowledge the reports and data MHA Nation provided in response to comments the Region made on the Air Quality Modeling Update (specifically, the June 2011 Revised Air Quality Modeling Update and worst-case scenario results). EAC’s claim, therefore, lacks merit.
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The Board notes, as a preliminary matter, that EAC has a heavy burden to
overcome. The challenges EAC makes to the air emission analysis are technical in nature and the Board generally gives substantial deference to the permitting au- thority on these types of questions. In re NE Hub Partners, LP, 7 E.A.D. 561, 567-68 (EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 377 (1989) (noting that courts must defer to informed discretion of the responsible federal agencies). That being said, the Board proceeds to analyze the arguments EAC makes.
i. NOx
With respect to NOx, EAC claims that the annual emissions MHA projected
assumed much lower emissions rates for the facility’s heaters and boilers, and therefore, instead of the projected 55.8 tons per year (“tpy”) rate of emissions, the refinery will more likely exceed 100 tpy.62 See EAC Pet. at 11-12. In support of this assertion, EAC identifies two alleged flaws in the assumptions used to esti- mate NOx emissions. EAC questions the assumption that the heaters at the refin- ery will emit 40 parts per million (“ppm”) NOx63 and the assumption that the boil- ers will emit 30 ppm NOx.64
With respect to the assumption that the heaters will emit 40 ppm NOx, the
Region explains that MHA Nation relied on 40 C.F.R. part 60 subpart Ja as a simple way to develop a conservative estimate of the likely NOx emissions from
62 EAC explains that this figure is based on the assumption that the refinery will not install
LoNOx or Ultra LoNOx burners on heaters and boilers at the refinery (because it is not legally re- quired). EAC Pet. at 12.
63 This assumption is based on compliance with 40 C.F.R. part 60 subpart Ja, which estab-
lishes standards of performance for new stationary sources under the CAA. Among other things, sub- part Ja establishes the limit on NOx emissions allowed from large process heaters. Sec- tion 60.102a(g)(2) requires process heaters with a rated capacity of greater than 40 million British thermal units per hour to emit no more than 40 ppm of NOx. 40 C.F.R. § 60.102a(g)(2).
According to EAC, the use of this figure to estimate NOx emissions from the proposed heaters
is flawed because (1) EPA has stayed the standards in subpart Ja; (2) subpart Ja only applies to one of the fourteen heaters MHA Nation is proposing for its refinery; and (3) the letter from the manufacturer MHA Nation included in the Addendum states that the NOx emission rate without Ultra LoNOx and LoNOx burners is 100 ppm, which should have been the assumption used. EAC Pet. at 11-12.
64 EAC claims that the Region should not have accepted the assumption that the boilers will
emit less than 30 ppm NOx because that number is based on estimates from one vendor only and because the correct assumption should have been 100 ppm – the industry standard, according to EAC. EAC Pet. at 12.
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the proposed refinery. Reg’s. Resp. at 32.65 The estimated NOx emissions for heat- ers were calculated based on (1) vendor information indicating availability of a variety of process heaters that emit between 17 and 100 ppm; (2) vendor informa- tion showing that low-NOx heaters emit between 25 and 35 ppm; (3) similarity between the original suite of units proposed for the refinery and the units pro- posed to account for the switch to Bakken feedstock; (4) the availability of low NOx technology making 35 ppm control of NOx achievable; and (5) the fact that MHA Nation used a NOx emission rate of 40 ppm to conservatively estimate overall NOx emissions. Id. at 33.
With respect to the boilers, the Region explains that it requested MHA Na-
tion to consult with vendors and suppliers of refinery combustion device burners and to supply the Region with information demonstrating what values might be expected from the refinery combustion devices. Id. The Region explains further that vendor information indicated that boilers are available that emit 9 ppm NOx and higher, and that while vendor data show a range of potential emission rates, the Region is not required to use a worst-case assumption. Id. The Region adds that it determined that the supplied data were within the realm of emission rates for similar types of units and concluded that the NOX emissions estimates for boil- ers in the Addendum were reasonable. Id.
EAC’s challenges to the assumptions used to estimate NOx emissions from
heaters and boilers are unpersuasive. The process of selecting an appropriate emission rate for boilers and heaters to estimate overall NOx emissions requires the exercise of technical judgment, which the Board will not second-guess unless it is clear that the Agency failed to make a reasoned decision or failed to exercise its considered judgment. See NE Hub, 7 E.A.D. at 567-68; see also Marsh, 490 U.S. at 77. Clearly, the Region considered several factors before concluding that the assumptions used to estimate emissions from heaters and boilers were reasonable. That the assumption used for boilers came from data provided by only
one vendor is not sufficient for the Board to conclude that the Region failed to make a reasoned decision, specially because EAC has not provided any evidence (such as data from other vendors) that would call into question the information the Region relied upon. In addition, in evaluating the change in feedstock, the Region not only examined the difference in NOx emissions that would result from the additional heaters and boilers necessary to process Bakken crude, it also analyzed the impact on ambient air, particularly the impact of NOx emissions on the NO2 NAAQS. Reg.’s Resp. at 34. Air modeling results predicted that the change in feedstock would not result in any violation of the NO2 NAAQS. See SIR at 7-8.
65 The Region also explains that the fact that subpart Ja has been stayed, and that only one of
the heaters is large enough to trigger application of subpart Ja during permitting, are not germane to this proceeding because the Region and MHA Nation were not involved in the air permitting process and the Region was not developing air permit limits. Reg.’s Resp. at 32.
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In light of all this, the Board concludes that the Region exercised its consid-
ered judgment in both accepting the emission estimates MHA Nation provided with respect to heaters and boilers and concluding, based on the totality of the analysis, that NOx emissions resulting from the change in feedstock do not rise to the level of significance necessary to trigger EIS supplementation.
ii. SO2
With respect to SO2, EAC claims that the information the Region relied
upon (1) did not include flaring emissions for shutdown events; (2) underesti- mated startup SO2 flaring emissions; and (3) assumed lower sulfur content in Bak- ken crude oil than what otherwise would be the case. EAC Pet. at 10-11.
The Region explains that it evaluated MHA Nation’s air modeling and esti-
mated flaring rates and examined various flaring rates from existing refineries. Reg.’s Resp. at 30. Flaring rates, the Region notes, are highly variable and can change through more rigorous operational procedures to reduce flaring. Id. In re- sponse to concerns raised in comments on the FEIS and the proposed change in feedstock, the Region asked MHA Nation to model a worst-case scenario for the NAAQS 1-hour average and 24-hour average SO2 emissions to assess the sensi- tivity of the model for scenarios with increased flaring.66 Id. at 30-31. The model predicted that during the worst-case scenario, which is highly unlikely to occur, the 1-hour SO2 NAAQS may be exceeded but not the 24-hour SO2 NAAQS. Id. at 31. The Region also explains that air modeling for Bakken predicted that the 24-hour and annual SO2 levels were less than modeled for the FEIS, which were below NAAQS, and that the refinery would meet the 1-hour SO2 NAAQS during normal operations, except, as previously noted, during worst-case conditions. Id. The Region notes that NEPA does not require evaluation of worst-case scenarios and that it went beyond NEPA requirements in asking for this analysis. Id. at 27 n.22.
With respect to sulfur content, the Region notes that Bakken oil is also a
low sulfur crude. In fact, the average sulfur content in Bakken oil is less than the sulfur content for synthetic crude oil analyzed in the FEIS. Bakken, however, has more variability in sulfur content than synthetic crude oil. Id. at 29. Therefore, to evaluate the impact of air emissions from a more variable crude oil, the Region requested that MHA Nation conduct modeling on SO2 emissions, which MHA Nation did. Id. To address the issue of sulfur content variability, MHA Nation
66 The worst-case scenario is based on four worst-case conditions occurring simultaneously:
(1) uncontrolled flaring; (2) worst-case meteorological conditions; (3) both sulfur recovery units out of order for 5 years; and (4) the maximum observed background SO2 concentration occurring at the same time as the maximum modeled SO2 emissions from the flare. Reg.’s Resp. at 27 n.22. These events are all highly unlikely to occur simultaneously; thus, the worst-case scenario itself is highly unlikely to occur.
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674 ENVIRONMENTAL ADMINISTRATIVE DECISIONS
proposed the installation of an additional sulfur recovery unit to process increased sulfur loads and to act as a back up should the primary sulfur recovery unit mal- function. Id.
The Board finds that the Region reasonably estimated SO2 emissions. It is
clear that, in its evaluation of SO2 emissions, the Region not only considered nor- mal operating conditions, it also considered the variability in sulfur content and emissions from flaring during worst-case conditions (which exceed flare emis- sions from startup and shutdown events).67 Having found that criteria pollutant emissions will be under the NAAQS, except for the 1-hour SO2 emissions occur- ring during worst-case conditions, and satisfied that the addition of a second sul- fur recovery unit will be sufficient to address sulfur variability, the Region con- cluded that ambient air quality will not be significantly affected by SO2 emissions from refining Bakken crude. Clearly, the Region exercised its considered judg- ment, and the Board has no basis to second-guess the Region’s determination.
iii. VOCs
EAC claims that the Air Quality Modeling Update MHA Nation provided
erroneously assumed that there would be zero VOC emissions from flaring. EAC Pet. at 12-13. The Region explains that this allegation is incorrect and clarifies that the Region did not require MHA Nation to include modeling of VOC impacts in the Air Quality Modeling Updated, the FEIS, or the SIR because the Region’s technical experts’ review of available data did not indicate potential violations of the ozone NAAQS from VOC emissions.68 Reg.’s Resp. at 35. The Region did, however, request information about all criteria pollutants, including ozone for both the FEIS and the SIR. Id. at 35-36 (citing A.R. EPA MHA-010682 to -010684; A.R. EPA MHA-010691 to -010707). After the proposed change in feedstock, MHA Nation complied with the Region’s request by submitting criteria pollutant emission estimates, including VOCs, in its Addendum. See A.R. EPA MHA-011233 to -011276. The Region explains that the Addendum did show that there will be an increase in VOC emissions due to the change in feedstock, but because the change is not accompanied by a production increase, VOC emissions estimates for the refinery processing Bakken crude are in essence similar to the ones in the FEIS. See Reg.’s Resp. at 36 (comparing Air Quality Technical Report for FEIS with Addendum for SIR); see also SIR at 7 tbl. 3 (comparing estimated FEIS emissions (77 tpy of VOCs) with estimated Bakken emissions (86.2 tpy of
67 See Reg.’s Resp. at 26 n.21 (noting that elevated flaring emissions would be similar to
startup/shutdown events); see also id. at 27 n.27 (noting that worst-case scenario is based on four worst-case conditions happening at the same time, including uncontrolled flaring for 5 years).
68 High VOC levels are an indicator of potential ozone problems, and EPA has promulgated
NAAQS for ozone. Reg.’s Resp. at 35; see also 40 C.F.R. pt. 50 (standards).
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MHA NATION CLEAN FUELS REFINERY 675
VOCs)).69 Based on those observations, the Region concluded that the impact from the change in VOC emissions was not significantly different from the im- pacts already evaluated in FEIS.
The record clearly shows that the Region considered the impact from poten-
tial VOC emissions from processing Bakken crude oil. The Region’s analysis is reasonable, and because EAC’s argument about the Air Quality Modeling Up- dated assuming zero VOC emissions from flaring is incorrect, the Board has no basis to second-guess the Region’s technical determination.
iv. Hydrogen Sulfide
EAC charges the Region with failing to consider hydrogen sulfide emis-
sions and potential exposure associated with the processing of a crude oil with higher sulfur content. EAC Pet. at 13. The Region first notes that hydrogen sulfide is primarily an issue of worker’s safety and that this type of issue is generally addressed by the U.S. Department of Labor, Occupational Safety and Health Ad- ministration, rather than EPA. Reg.’s Resp. at 37 n.22. The Region also explains that its air emissions analysis, for both the FEIS and the SIR, did not include hydrogen sulfide emissions because hydrogen sulfide is not anticipated to be pre- sent at the refinery in significant quantities. This conclusion, the Region explains, is based on the following factors: (1) the refinery will have several systems to control the release of hydrogen sulfide, such as closed processing and removal of sulfur from the crude; (2) the refinery will not be refining sour crude70 (or high sulfur crude); (3) the minor sulfur releases that would be associated with the refin- ery are addressed through CAA technology and permitting requirements; (4) the variability in sulfur content from Bakken oil will be addressed by the installation of an additional sulfur recovery unit; and (5) the overall refinery production level is not expected to increase from the change in feedstock. Therefore, the Region determined that there will not be an increase in hydrogen sulfide from that antici- pated in the FEIS. Id. at 37-38.
Clearly, the Region did consider whether specific data on hydrogen sulfide
emissions were necessary as part of the air impacts analysis of the proposed change in feedstock and decided, based on the reasons stated above, that such information was unnecessary. The Region’s decision not to require air emission data or modeling of hydrogen sulfide emissions is a judgment the Region made based on its technical expertise. Its conclusion that hydrogen sulfide emissions
69 The Region notes that if MHA Nation had assumed 100% combustion efficiency in its cal-
culations of VOC emissions from the flare unit, as EAC alleges in its petition, the VOC emissions estimates for that unit would have been zero, which was not the case. Reg.’s Resp. at 36.
70 As previously noted, both the synthetic crude oil originally proposed and Bakken are con-
sidered sweet crudes, low in sulfur content.
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were not a concern both prior to and after the proposed change in feedstock is based on reasonable considerations (e.g., the refinery will process sweet crudes; an additional sulfur recovery unit will be installed to handle sulfur variability; the change in feedstock does not come with a change in production level; permitting requirements can help control sulfur releases). Because the Region did consider the need to evaluate hydrogen sulfide emissions and exercised its considered judgment not to require such emission data, the Board declines to second-guess the Region’s technical judgment.
f. The Region Was Not Required to Hire an Independent
Contractor
As noted earlier, EAC suggests that the Region was required to hire, or
should have hired, an independent expert to evaluate the significance of the pro- posed change in feedstock. EAC Pet. at 9-10. For this proposition, EAC cites Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989). Id. (at- tempting to draw parallel between the Army Corps of Engineers in Marsh and the Region in this case, noting that the Army Corps of Engineers hired two indepen- dent experts to evaluate the new information and carefully scrutinize the new in- formation, and claiming that EPA did not engage in “any such evaluation of the environmental impacts of the proposed change”).
The Board rejects EAC’s suggestion. The case EAC relies upon does not
stand for the proposition EAC proposes. While it is true that the Army Corps of Engineers in Marsh hired independent contractors to evaluate certain studies, see Marsh, 490 U.S. at 383, the Marsh decision does not mandate, or even suggest, that a lead agency hire independent contractors to fulfill its obligation of “taking a hard look” as it assesses the significance of new information or circumstances. See id. at 378-85. The Marsh decision does mention the hiring of independent contractors, but only as an additional step the Army Corps of Engineers took in that particular case in its evaluation of new information.
Significantly, the Marsh case stands for a different proposition than the one
EAC proposes. Marsh states that review of a decision by a responsible agency not to supplement an EIS is controlled by the arbitrary and capricious standard of the Administrative Procedure Act, and that courts must defer to the informed discre- tion of the responsible agency when resolution of issues requires a high degree of technical expertise. See id. at 377 (noting that when “analysis of [] relevant docu- ments ‘requires a high level of technical expertise,’ [courts] must defer to ‘the informed discretion of the responsible federal agencies’”) (quoting Kleppe v. Si- erra Club, 427 U.S. 390, 412 (1976))).
In light of all this, the Board concludes that the Region satisfied its NEPA
obligations with respect to EIS supplementation.
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2. Did EAC Demonstrate That the Sulfide Issue It Raises Warrants
Review?
As noted earlier in this decision, EAC’s petition challenges several of the
Permit conditions, but since the Region withdrew most of the challenged condi- tions, the only issue remaining for Board examination is the challenge EAC makes with respect to sulfide.71 The challenge, however, is procedurally barred.
EAC has not demonstrated that the issue (or issues) it attempts to raise
about sulfide was (or were) preserved for Board review.72 The Board has ex- amined the comment letters EAC included in its petition as Exhibit 4, and none of them raise any issues related to sulfide. If any comments on this topic were in fact raised during the public comment period, EAC has not identified them. As the Board has stated on numerous occasions, it is not incumbent upon the Board to scour the record to determine whether an issue was properly raised below or de- termine what part of the Region’s analysis the petitioner is challenging. See, e.g., In re Guam Waterworks Auth., 15 E.A.D. 437, 451 n.14 (EAB 2011); In re En- cogen Cogeneration Facility, 8 E.A.D. 244, 250 n.10 (EAB 1999). The burden of demonstrating that an issue was preserved for review falls on the petitioner, and the failure to make such demonstration is a basis for denying review.73 In addi- tion, this is not the case where the issue was not reasonably ascertainable during the public comment period, particularly because no changes to the effluent limita-
71 See supra note 18.
72 It is unclear exactly what EAC attempts to challenge regarding sulfide. EAC argues that for
certain pollutants, including sulfide, the Region did not calculate technology-based effluent limits cor- rectly. See EAC Pet. at 19. If it had, the Region would have calculated much more stringent limits. Id. at 19-20. EAC even suggests what those limits should be. Id. at 20-21 (table comparing limits EAC proposes with limits in final permit).
The problems with these arguments are that the Permit does not have a sulfide limit, and EAC
does not articulate a challenge to the lack of a sulfide limit. The Region assumes that EAC is challeng- ing the hydrogen sulfide limit in the Permit, see Reg.’s Pet. at 18-19, but that is inconsistent with the text of the petition. This lack of specificity leaves the Board with no ability to review the challenge to the extent that there is one. Like the failure to demonstrate that an issue has been preserved for Board review, the lack of specificity in a petition also constitutes a basis for denying review.
73 See 40 C.F.R. § 124.13 (“All persons, including applicants, who believe any condition of a
draft permit is inappropriate * * * , must raise all reasonably ascertainable issues and submit all rea- sonably available arguments supporting their position by the close of the public comment period (in- cluding any public hearing) under § 124.10.”); see also In re Russell City Energy Ctr., 15 E.A.D. 1, 43 n.46 (EAB 2010) (stating that it is the petitioner “who bears the burden of demonstrating that this issue was raised, and with sufficient specificity, during the public comment period” (citing 40 C.F.R.
§ 124.19(a) and Board cases)).
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tions were made between the draft permit and final permit.74
Because EAC has failed to demonstrate that the issue it raises was pre-
served, a prerequisite to demonstrating that an issue warrants review, the Board declines to review the Permit on the basis EAC proposes.
VII. CONCLUSION
Based on the foregoing discussion, the Board determines that:
1. The Region satisfied its NEPA obligations with respect to EIS
supplementation;
2. EAC failed to demonstrate that the issue it raises about sulfide war-
rants review.
VIII. ORDER
The Board dismisses NPDES Appeal Nos. 11-04 and 12-03 and denies re-
view of NPDES Appeal Nos. 11-02 and 11-03.
So ordered.
74 Compare Effluent Limitation Table for Outfall 002 in Draft Permit (A.R. EPA MHA-094)
with Revised Draft Permit (EPA MHA-06818) and Final Permit (A.R. EPA MHA-010); see Fact Sheet at 1 (noting that the “Permit was Public Noticed on June 23, 2006,” and “[t]he comments re- ceived and the supplemental information provided following public notice did not change the condi- tions in the NPDES permit”) (A.R. EPA MHA-038).
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