Sierra Pacific Industries (Board decision, June 5, 2014)

Plain-English summary

Region 9 issued Sierra Pacific Industries a Clean Air Act Prevention of Significant Deterioration permit after the Board had remanded an earlier version for a public hearing. Marily Woodhouse, Russ Wade, and the Center for Biological Diversity petitioned for review of the reissued permit. The Board explained that its earlier order expressly said it would not require or accept another EAB appeal after remand, so Region 9's final permit decision was final agency action for judicial review. The Board dismissed all three petitions because it lacked jurisdiction over the appeals.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(l)(2)(iii) and related remand-finality provisions.
• Outcome: PSD permit appeals dismissed for lack of EAB jurisdiction.
• Key point: When an EAB remand order makes the agency's revised permit decision final agency action, a second EAB appeal may not be available.

Full text (EPA EAB public release)

             BEFORE THE ENVIRONMENTAL APPEALS BOARD
         UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                         WASHINGTON, DC

                                                                                      JUN - 5 2014

                                    )

In re: )
)
Sierra Pacific Industries ) PSD Appeal Nos. 14-03, 14-05, & 14-06
)
PSD Permit No. SAC 12-01 )
)
____)

         ORDER DISMISSING APPEALS FOR LACK OF JURISDICTION

     Marily Woodhouse, Russ Wade, and the Center for Biological Diversity ("CBD") petition

the Environmental Appeals Board ("Board") to review a Clean Air Act prevention of significant

deterioration ("PSD") permit, PSD Permit No. SAC 12-01, issued by Region 9 of the U.S.

Environmental Protection Agency ("Region 9") on April 25, 2014. 1 Previously, the Board

remanded an earlier version of this permit to Region 9 so that the Region could hold a public

hearing. At that time, the Board directed that "[ o]nee the Region issues a final permit decision

following the public hearing required by this remand, that final permit decision and the Board's

decision in this case become final agency action subject to judicial review." In re Sierra Pacific

Indus., PSD Appeal Nos. 13-01 through 13-04, slip op. at 67 (EAB July 18, 2013), 15 E.A.D. _

(Order Remanding in Part and Denying Review in Part)); see 40 C.F.R. § 124.19(1). The Board

made clear that, pursuant to section 124.19(1)(2)(iii) of Title 40, it "is not requiring, and will not

accept, an appeal to the Board on the final permit decision following remand in this case." Sierra

Pacific, slip op. at 67, 15 E.A.D. at .
1
Ms. Woodhouse also filed a document titled "Supplemental Petition with Attachment" on May 29, 2014. The Board has treated this filing as an addendum to her petition. Neither Ms. Woodhouse nor Mr. Wade address in their petitions the appropriateness of

filing a challenge to the reissued permit with the Board. 2 CBD, while acknowledging the Board's

prior statement on a second round of review, nevertheless argues that it is important for the

Board to accept its petition because of the new issues addressed by Region 9 on remand.

Specifically, CBD points to the new Best Available Control Technology analysis undertaken by

Region 9, which included, for the first time, greenhouse gas emissions limits on carbon dioxide.

CBD asserts that, if the Board does not consider its appeal, "a federal court would, in effect,

become the 'first-level decision maker' with respect to issues that the Board- and EPA as a

whole- has not had an opportunity to address, and as to clear errors that the agency as a whole

has not had an opportunity to correct." CBD Petition for Review at 5 (May 27, 2014).

    Under the Board's regulations, where the Board chooses not to require a further appeal to

the Board to exhaust administrative remedies, the Regional Administrator's issuance of the

final permit decision is "final agency action" for the purpose of judicial review. 40 C.F.R.

§ 124.19(l)(2) (providing that a permit decision is final for purposes of judicial review "upon

completion of remand proceedings if the proceedings are remanded, unless the Environmental

Appeals Board's remand order specifically provides that appeal of the remand decision will be

required to exhaust administrative remedies" (emphasis added)). There is no question that the

Board specifically did not require an appeal following remand. Sierra Pacific, slip op. at 67, 15

E.A.D. at_. Thus, the Region's final permit decision on remand is final agency action and the 2 These petitioners might have thought appeal to the Board was available because Region 9's announcement of its final permit decision, although noting the Board's determination that it would not exercise appellate jurisdiction over the Region's decision on remand, contains other boilerplate language that suggests appeal to the Board might be appropriate. Region 9 has explained that this language was included in the final permit decision because it "considered it prudent not to preclude interested parties from presenting for consideration by Region 9 and the Board any arguments as to why review to the Board should be available notwithstanding the above-quoted paragraph from the Board's earlier order." Motion for Consolidation and Clarification of Deadlines at 2 (June 2, 2014). Board lacks jurisdiction over this appeal. Accordingly, the Board dismisses the petitions for

review filed by Ms. Woodhouse, Mr. Wade, and CBD.

   So ordered. 3



                                                 ENVIRONMENTAL APPEALS BOARD


           JUN -5 2014

Dated: _ _ _ _ _ _ _ _ _ __

                                                               Randolph L. Hill

                                                         Environmental Appeals Judge

3
The three-member panel deciding this matter is composed of Environmental Appeals Judges Leslye M. Fraser, Randolph L. Hill, and Kathie A. Stein. See 40 C.F.R. § 1.25(e )(1 ). CERTIFICATE OF SERVICE

     I hereby certify that copies of the foregoing Order Dismissing Appeals for Lack of

Jurisdiction in the matter of Sierra Pacific Industries, PSD Appeal Nos. 14-03, 14-05, & 14-06, were sent to the following persons in the manner indicated:

By U.S. First Class Mail: William M. Sloan
Morrison & Foerster LLP
Marily Woodhouse 425 Market Street The Battlecreekalliance.org San Francisco, CA 94105-2482 P.O. Box 255 Montgomery Creek, CA 96065 Courtesy Copy By EPA Interoffice Mail:

Russ Wade Brian Doster 1991 Heller Lane Office of General Counsel Redding, CA 96001 Air and Radiation Law Office
U.S. Environmental Protection Agency
Kevin Bundy 1200 Pennsylvania Ave., N.W. Center for Biological Diversity MC 2344A 351 California Street, Suite 600 Washington, D.C. 20460-0001 San Francisco, CA 94104

By EPA Pouch Mail:

Kara Christenson

                                                ~u;1WJ

Office of Regional Counsel,
U.S. EPA Region 9 (ORC-2)
75 Hawthorne Street
San Francisco, CA 94105

Courtesy Copy By U.S. First Class Mail:
Date: JUN -5 2014
Rick Simon
Air Pollution Control Officer
Department of Resource Management
Shasta County Air Quality Management
District
1855 Placer Street, Suite 101
· Redding, CA 96001

Tony Jaegel
Sierra Pacific Industries
19794 Riverside Avenue
Redding, CA 96049-6028