Energy Answers, LLC (Board decision, May 30, 2014)

Plain-English summary

Leonardo Ramos-Hernandez appealed a Clean Air Act Prevention of Significant Deterioration permit issued by EPA Region 2 to Energy Answers Arecibo Puerto Rico Renewable Energy Project. The Environmental Appeals Board had previously upheld an earlier version of the permit and remanded it for limited revisions concerning biogenic greenhouse gas emissions. The Board said it had not retained jurisdiction after the remand, so the Region's April 10, 2014 final permit decision was final agency action and the Board lacked jurisdiction over the new appeal. The Board dismissed the petition for review and stated that no further review would be allowed under the circumstances.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19, § 124.19(l)(2)(iii), and 42 U.S.C. § 7607(b)(1)
• Outcome: The petition for review was dismissed for lack of jurisdiction.
• Key point: After remand, the Region's subsequent final permit decision is final for judicial review unless the Board specifically retains jurisdiction.

Full text (EPA EAB public release)

F I L E D

MAY 30 2014

Clerk, Environmental Appeals Board
INITIALS [illegible]

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

                                               )

In re: Energy Answers, LLC ) PSD Appeal No. 14-04 (Arecibo Puerto Rico Renewable Energy ) Project) )

                                               )

                     ORDER DISMISSING APPEAL

Leonardo Ramos-Hernandez appeals from a Clean Air Act Prevention of Significant Deterioration permit that U.S. Environmental Protection Agency Region 2 ("Region") issued to Energy Answers Arecibo Puerto Rico Renewable Energy Project on April 10, 2014.¹ The Environmental Appeals Board ("Board") previously considered and upheld an earlier version of this permit on nearly all grounds, but remanded the permit for the limited purpose of incorporating specific revisions to regulate biogenic greenhouse gas emissions. In re Energy Answers Arecibo, LLC, PSD Appeal Nos. 13-05 through 13-09 (EAB Mar. 25, 2014), 16 E.A.D. at ___. At that time, the Board indicated that it was not retaining jurisdiction of the final permit. Id. at 96 (stating that the Board "is not requiring an appeal to the Board on the final permit decision issued following remand."); see also 40 C.F.R. § 124.19(l)(2)(iii) (providing that a permit decision is final for purposes of judicial review "upon the 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.")²

In issuing the April 10, 2014, final permit, the Region explained:

    [I]n accordance with 40 C.F.R. [§] 124.19, this letter serves as the final
    permit decision by EPA Region 2 for the Energy Answers PSD permit.
    ***
    Public notice of this final agency action will be published in the Federal
    Register pursuant to 40 C.F.R. § 124.19. This determination is final
    Agency Action under the Clean Air Act (the Act). Under Section
    307(b)(1) of the Act, judicial review of this final action is available only
    by filing a petition for review in the United States Court of Appeals for the
    appropriate circuit within 60 days from the date on which the final permit
    decision is published in the Federal Register.

U.S. EPA Region 2, Final Permit-Prevention of Significant Deterioration (PSD) of Air Quality, Energy Answers Arecibo Puerto Rico Renewable Energy Project (Apr. 10, 2014). The Region published notification of the Final Permit decision on May 19, 2014. 79 Fed. Reg. 28,710 (May 19, 2014). Based on the above, the Board lacks jurisdiction over this appeal and, accordingly, dismisses Mr. Ramos' petition for review.

So ordered.³

                     ENVIRONMENTAL APPEALS BOARD

Dated: May 30, 2014

By: ________
Kathie A. Stein
Environmental Appeals Judge

¹ Mr. Ramos submitted via email to the Clerk of the Board a "Notice of Appeal." The Board accepts the "Notice of Appeal," as filed despite Mr. Ramos' failure to file according to procedures and construes the Notice of Appeal as a Petition for Review under 40 C.F.R. § 124.19, which provides for appeals from PSD permitting decisions.

² In a footnote, the Board suggested that further review by the Board might be allowed if the Region were to clearly err in reissuing the permit. Nothing in Mr. Ramos' petition or the reissued Final Permit, however, suggests that the Region did anything other than revising the permit as directed by the Board. Thus, no further review will be allowed.

³ The three-member panel deciding this matter is composed of Environmental Appeals Judges Leslye M. Fraser, Catherine R. McCabe, and Kathie A. Stein.

CERTIFICATE OF SERVICE

I certify that copies of the foregoing Order Dismissing Appeal in the matter of Energy Answers, LLC, PSD Appeal No. 14-04, were sent to the following persons in the manner indicated:

By U.S. First Class Mail
Certified, Return Receipt Requested:

Leonardo Ramos-Hernandez
HC 4 Box 2925
Barranquitas, PR 00794

Waldemar Natalio Flores Flores
Calle 4 B 20 Forest Hills
Bayamon, PR 00959-5527

Don J. Frost
Henry C. Eisenberg
Skadden, Arps, Slate, Meagher & Flom, LLP
1440 New York Avenue, NW
Washington, DC 20005-2111

By EPA Pouch Mail:

Joseph A. Siegel
James L. Simpson
Assistant Regional Counsel
U.S. EPA Region 2
290 Broadway
New York, NY 10007

By Interoffice Mail:

Brian L. Doster
Air and Radiation Law Office
Office of General Counsel
1200 Pennsylvania Ave. NW (MC2344A)
Washington, DC 20460

Dated: MAY 30 2014

Annette Duncan
Secretary