Port Townsend Paper Corp. (Board decision, January 12, 1998)

Plain-English summary

Port Townsend Paper Company and Rebound each petitioned the EAB to review a PSD permit approved by Washington's Department of Ecology and EPA Region X. Port Townsend withdrew its petition as untimely, while Rebound's petition did not show that it had commented on the draft permit or participated in the public hearing. The Board dismissed Rebound's petition for lack of standing and dismissed Port Townsend's petition with prejudice. The order did not decide the merits of the claim that either petition was untimely.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19 and 40 C.F.R. § 124.19(a).
• Outcome: Rebound's appeal was dismissed for lack of standing, and Port Townsend's appeal was dismissed with prejudice after withdrawal.
• Key point: A petitioner generally must have commented on the draft permit or participated in the public hearing to challenge final-permit conditions that were already in the draft permit.

Full text (EPA EAB public release)

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

)
In re: )
)
Port Townsend Paper Corp. ) PSD Appeal Nos. 97-13, 97-14 )
Permit No. PSD 96-01
)
)
)

ORDER DISMISSING APPEALS

On September 22, 1997, the Board received two petitions

asking that the Environmental Appeals Board review a PSD permit

approved jointly by the State of Washington’s Department of

Ecology ("WDOE") and U.S. EPA Region X. One was filed by the

permittee, Port Townsend Paper Company ("Townsend") (PSD Appeal

No. 97-13), and the other was filed by Rebound (PSD Appeal No.

97-14), a group of citizens living and working in the vicinity of

the permitted facility.

On December 8, 1997, Townsend filed a motion seeking

dismissal of Rebound’s petition for review on the ground that the

petition was not timely filed. In addition, Townsend states that

it is withdrawing its own petition for the same reason. See Port

Townsend Paper Corporation’s Withdrawal of PSD Appeal No. 97-13

and Motion to Dismiss PSD Appeal No. 97-14 for Failing to Comply

with 40 CFR § 124.19 ("Withdrawal") and Port Townsend Paper

Corporation’s Memorandum Re Withdrawal of PSD Appeal No. 97-13

and in Support of Motion to Dismiss PSD Appeal No. 97-14 for

Failing to Comply with 40 CFR § 124.19 ("Memorandum"). In

particular, the memorandum states that the above-referenced PSD

permit was issued on June 18, 1997, and served on June 23, 1997,

and that neither Townsend’s nor Rebound’s petition for review was

filed within the 30-day time period required by 40 C.F.R.

§ 124.19. Memorandum at 3. In addition, Townsend contends that

because Rebound did not file comments on the draft PSD permit

issued by WDOE, Rebound lacks standing to appeal pursuant to 40

C.F.R. § 124.19(a). Memorandum at 9.1

After reviewing the record on appeal, we agree with Townsend

that Rebound’s failure to comment on the draft permit requires

dismissal of Rebound’s appeal. As the Board has previously

stated, under the regulations governing permit appeals before the

Board:2

[A] petitioner has "standing" to pursue an appeal of the conditions of a final permit that are identical to the conditions of the draft permit only if the petitioner filed timely comments on the draft permit or participated in the public hearing on the draft permit.

• • • A petitioner who failed to file comments on a draft permit or participate in the public hearing will only have standing to pursue an appeal to the extent that the conditions in the draft permit are changed in the final permit. * * * This requirement is imposed in order to "ensure that the Region has an opportunity to address potential problems with the draft permit before

1
Rebound has not filed a reply to Townsend’s Withdrawal or its Memorandum.
2
See 40 C.F.R. § 124.19(a).
the permit becomes final."

In re Commonwealth Chesapeake Corp., PSD Appeal Nos. 96-2 through

96-5, slip op. at 9 (EAB, Feb. 19, 1997), 6 E.A.D. ___ (quoting

In re Envotech, L.P., UIC Appeal No. 95-2 through 95-37, slip op.

at 6, Feb. 15, 1996), 6 E.A.D. ___).

Rebound’s petition does not claim or demonstrate that it

filed comments on the draft permit or otherwise participated

during the public comment period,3 nor does the petition purport

to relate to changes from the draft to the final permit. Based

on the record before the Board, it does not appear that Rebound

has fulfilled the regulatory prerequisites to having standing to

petition for review from WDOE’s and Region X’s permit decision.

Accordingly, Rebound’s petition must be dismissed for lack of

standing.

Finally, based on Townsend’s statement that it is

3
Our review of the record before us verifies that Rebound did not participate in the proceedings below. See letter accompanying final permit to Marion L. Rideout, Port Townsend Paper Corp., from Richard B. Hibbard, WDOE (June 23, 1997) (stating that Port Townsend was the only non-WDOE commenter).

withdrawing its petition as untimely, Townsend’s petition is

hereby dismissed with prejudice.4

ENVIRONMENTAL APPEALS BOARD

Dated: 1/13/98 By: /s/
Ronald L. McCallum
Environmental Appeals Judge

4
In dismissing Townsend’s petition, we are relying solely on Townsend’s statement that it is withdrawing its appeal. We do not reach, and express no opinion on, the merits of Townsend’s assertion that both its and Rebound’s petition were untimely.

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order

Dismissing Appeals in the matter of Port Townsend Paper Corp.,

PSD Appeal Nos. 97-13 and 97-14 were sent to the following

persons in the manner indicated:

First Class Mail,
Postage Prepaid: Matthew Cohen
Heller, Ehrman, White,
& McAuliffe
610 Columbia Center
701 Fifth Ave.
Seattle, WA 98104-7098

Otto Herman
Rebound
2700 First Ave., Suite 103
Seattle, WA 98121

Mary Sue Wilson
Kurt B. Peterson
Assistant Attorneys General
State of Washington
Ecology Division
P.O. Box 40117
Olympia, WA 98504-0177

Chuck Clarke
Regional Administrator
U.S. EPA, Region X
1200 Sixth Ave.
Seattle, WA 98101

Anita Frankel, Director
Office of Air Quality
U.S. EPA, Region X
1200 Sixth Ave.
Seattle, WA 98101

Dated: 1/13/98
/s/
Mildred T. Johnson
Staff Assistant