Sunrise Powerlink (Board decision, November 29, 2010)

Plain-English summary

Cindy Buxton asked the Environmental Appeals Board to review the Sunrise Powerlink project, which apparently involved a proposed high-voltage transmission line in the San Diego, California area. Her request raised concerns about the project and the process it had undergone, but did not identify an EPA permitting decision. The Board explained that its jurisdiction covers EPA permitting decisions under specified environmental statutes, not decisions issued by other federal agencies or matters outside its regulatory authority. The Board dismissed the appeal.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 1.25(e)(1), 124, and 124.19; 42 U.S.C. § 7475; 33 U.S.C. § 1342; 42 U.S.C. §§ 6901-6992k
• Outcome: The appeal was dismissed because the Board lacked jurisdiction to review the project.
• Key point: A petitioner must identify an EPA permitting decision and a regulatory basis for EAB review before the Board can reach the substance of an appeal.

Full text (EPA EAB public release)

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

                                                  )

In re: )
) PSD Appeal No. 10-14
Sunrise Powerlink )

------------------------------ )
ORDER DISMISSING APPEAL

       On November 15, 2010, Cindy Buxton filed a request with the Environmental Appeals

Board ("Board") for "appeal and review" of the Sunrise Powerlink project. This project

apparently involves a proposal by the San Diego Gas & Electric Company to construct a high-

voltage power transmission line in the area of San Diego, California.¹ Ms. Buxton's request

raises various concerns that she has with the project and the process that it has undergone thus

far. Ms. Buxton has not, however, identified any permitting decision, or other decision, made by

the United States Environmental Protection Agency ("EPA"). Thus, as further explained below,

the Board dismisses Ms. Buxton's appeal because the Board has no authority to review the

project.

       The Environmental Appeals Board is the final decision maker for the EPA in

administrative appeals under all major environmental statutes that the EPA administers. See 40

C.F.R. § 1.25(e)(1); see also 40 C.F.R. part 124. Generally, this means that the EAB has the

authority to review permitting decisions made by the EPA in accordance with regulations

delegating this authority from the EPA Administrator. See, e.g., 40 C.F.R. § 124.19. The

Board's permitting docket includes appeals from EPA permits issued under various

environmental statutes, such as Prevention of Significant Deterioration ("PSD") permits issued

under the Clean Air Act, 42 U.S.C. § 7475, National Pollutant Discharge Elimination System

("NPDES") permits issued under the Clean Water Act, 33 U.S.C. § 1342, and Resource

Conservation and Recovery Act ("RCRA") permits issued under 42 U.S.C. §§ 6901-6992k. See

generally 40 C.F.R. § 124.19 (authorizing review of PSD, NPDES and RCRA permits, among

others); see also EAB Docket available at http://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/

EAB+Dockets?OpenPage. The Board does not have jurisdiction over appeals from permitting

decisions that are issued by other federal agencies. See In re Environmental Disposal Systems,

Inc., 12 E.A.D. 254, 294 (EAB 2005) (explaining that the Board is "not at liberty to resolve every

claim brought before [it] in a permit appeal but must restrict [its] review to conform to [its]

regulatory mandate").

   ¹ The project is listed on the website of the California Public Utilities Commission
   ("PUC") as under the jurisdiction of the PUC, the United States Department of Interior's
   Bureau of Land Management ("BLM"), and the United States Forest Service ("USFS"). See
   California Public Utilities Commission website (describing the various aspects of the project
   and the agencies with "jurisdiction" over those aspects) available at http://www.cpuc.ca.gov/
   info/aspen/sunrise/sunrise.htm.

Procedural regulations governing appeals from permitting decisions over which the Board

does have jurisdiction are found in Title 40 of the Code of Regulations (C.F.R.), part 124.

Section 124.19 identifies the requirements for filing an appeal from an EPA-issued permit. The

Board has interpreted these regulations to require, as a threshold matter, that in any appeal from a

permit identified in part 124, the petitioner bears the burden of identifying the basis for appeal, as

well as providing the basis for the Board's jurisdiction to review the permit. See, e.g., In re

Gateway Generating Station, PSD Appeal No. 09-02 at 7 (EAB Sept. 15, 2009) (Order

Dismissing Petition for Review). Additionally, it is the Board's obligation to ensure its own

authority over the matter before it proceeds with review.

In this case, even construing Ms. Buxton's "request for appeal and review" liberally,²

there is no EPA permit identifiable over which the Board may assert jurisdiction under part 124

or any other regulatory provision. Neither does Ms. Buxton cite to any applicable regulatory

provision as the basis for seeking review. As stated above, the Board can only decide appeals

over which it has been granted regulatory authority. Because Ms. Buxton has not shown that the

Board has jurisdiction to review any of the concerns she raises in her appeal, the Board dismisses

the appeal.³

     So ordered.

Dated: November 29, 2010 ENVIRONMENTAL APPEALS BOARD

                                           Edward E. Reich
                                           Environmental Appeals Judge


   ² The Board notes that Ms. Buxton has acknowledged that she is not an attorney and the
   Board generally attempts to construe pleadings submitted by non-attorneys liberally. See In re
   Beckman Prod. Servs., 5 E.A.D. 10, 19 (EAB 1994) (explaining that "[t]he Board generally tries
   to construe petitions filed by persons unrepresented by counsel in a light most favorable to the
   petitioners").

   ³ This matter was decided by the following three-member panel of Environmental Appeals
   Board Judges: Edward E. Reich, Charles J. Sheehan, and Kathie A. Stein. See 40 C.F.R.
   § 1.25(e)(1).

CERTIFICATE OF SERVICE

   I hereby certify that a copy of the foregoing Order Dismissing Appeal in In re Sunrise

Powerlink, PSD Appeal No. 10-14, was sent to the following person in the manner indicated:

By Certified Mail Return Receipt Requested:

Cindy Buxton
541 Spruce Street
Imperial Beach, CA 91932

   Additionally, courtesy copies of the foregoing Order Dismissing Appeal in In re Sunrise

Powerlink, PSD Appeal No. 10-14, were sent to the following persons in the manner indicated:

By First Class U.S. Mail: By Interoffice Mail:

State of California Public Utilities U.S. EPA
Commission OECA/Office of Civil Enforcement
Billie Blanchard, CPUC Project Manager Adam Kushner
505 Van Ness Avenue Pam Mazakas
San Francisco, CA 94102 Ariel Rios Building
1200 Pennsylvania Ave. NW
San Diego Gas & Electric Mail Code: 2241A
Sunrise Powerlink Washington, DC 20460
8330 Century Park Ct., CP31D
San Diego, CA 92123 U.S. EPA
OECA/Office of Environmental Justice
USDA Forest Service Charles Lee
Pacific Southwest Region (R5) Heather Case
Regional Forester, Randy Moore Ariel Rios Building
1323 Club Drive 1200 Pennsylvania Ave. NW
Vallejo, CA 94592 Mail Code: 2201A
Washington, DC 20460

                                        U.S. EPA
                                        OECA/Office of Federal Activities
                                        Susan Bromm
                                        Kimberley DePaul
                                        Ariel Rios Building
                                        1200 Pennsylvania Ave. NW
                                        Mail Code: 2251A
                                        Washington, DC 20460

Date: NOV 29 2010 Annette Duncan
Secretary