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Ninth Circuit Affirms EPA’s Approval of a PSD Clean Air Act Permit For Biomass-Burning Power Plant at Lumbar Mill

The Ninth Circuit Court of Appeals has considered Helping Hand Tools (Helping Hand) and the Center for Biological Diversity’s (Center) petition for review of a final decision by the U.S. Environmental Protection Agency (EPA) granting Sierra Pacific Industries (Sierra Pacific) a Prevention of Significant Deterioration (PSD) permit for constructing a new biomass-burning power plant at its lumber mill in California. This case is the Ninth Circuit’s first consideration of the EPA’s doctrine of “redefining the source” under the federal Clean Air Act (CAA). [Helping Hand Tools, et al. v. U.S. Environmental Protection Agency, ___F.3d___, Case No. 14-72553 (9th Cir. 2016).]

Sierra Pacific operated a lumber manufacturing facility in Northern California. In 2010, Sierra Pacific filed an application for a PSD permit to construct a “cogeneration unit” at its mill. The unit is designed to burn biomass fuels, which include “wood waste such as chips and bark from sawmill operations, forest residue, agricultural residue, crops, grasses, standing trees, and waste from landfills or water treatment.” The unit is also designed to produce electricity from steam generated from burning biomass.

The Ninth Circuit began its analysis by first considering whether the EPA was required to consider solar power and a greater natural gas mix as clean fuel control technologies in the BACT analysis. The primary question facing the Ninth Circuit in resolving that issue was whether considering alternative energy sources such as solar and natural gas was a consideration of clean fuel control technologies or effectively a redesign of the proposed facility (i.e. “redefining the source”).

The Ninth Circuit rejected Helping Hand and the Center’s petition for review of the PSD permit issuance. Following the decision in this matter of first impression for the Ninth Circuit, contesting EPA determinations under the doctrine of “redefining the source” may be more challenging due to the high level of deference afforded to the EPA. Additionally, co-located facilities and fuel sources may be more insulated from the requirement to consider a variety of clean fuel alternatives available to proposed projects. The court’s decision is available at: https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/23/14-72553.pdf

(Danielle Sakai, Miles Krieger)