ANTI-BIOMASS CAMPAIGN CALL RECORDING & NOTES: “Court Rejects EPA Rule that Deferred Carbon Standards for Biomass Industry” (August 2013)

Anti-Bio­mass Incin­er­a­tion Cam­paign — Nation­al Con­fer­ence Call Notes

Thurs­day, August 1, 2013 at 3pm EST

Top­ic: “Court Rejects EPA Rule that Deferred Car­bon Stan­dards for Bio­mass Indus­try” — What does the recent U.S. Court of Appeals deci­sion (Cen­ter for Bio­log­i­cal Diver­si­ty v. EPA) mean for the future of indus­tri­al-scale bio­mass incin­er­a­tion in the U.S.?

Guest Speak­er: Kevin Bundy, Senior Attor­ney, Cen­ter for Bio­log­i­cal Diver­si­ty (CBD)

RECORDING: 

Court Rejects EPA Rule that Deferred Car­bon Stan­dards for Bio­mass Indus­try ‑August 2013

Facil­i­ta­tor: Josh Schlossberg

Notes: Saman­tha Chirillo

On Call: Kevin Bundy, Cen­ter for Bio­log­i­cal Diver­si­ty (CA); Josh Schloss­berg, Ener­gy Jus­tice Net­work (VT); Rachel Smolk­er, Bio­fu­el­watch (VT); James Tra­vers, Cit­i­zens Envi­ron­men­tal Coali­tion (NY); Carl Ross, Save Amer­i­c­as Forests (DC); Mike Ewall, Ener­gy Jus­tice Net­work (PA); Saman­tha Chir­il­lo, Ener­gy Jus­tice Net­work (OR); Chris Zin­da, Save Our Rur­al Ore­gon (OR); Tim Platt (OR); Kevin Glenn (CA); Scott Herscie?(NC?); Dian Deevey (FL); Paula Stah­mer (FL); Bob Rho­di (TX); Ray Wash­ing­ton (FL); David Lut­ter (FL); Karen Orr, Ener­gy Jus­tice Net­work (FL); Sami Yas­sa, Nat­ur­al Resources Defense Coun­cil (CA); Therese Vick, Blue Ridge Envi­ron­men­tal Defense League (NC); Gretchen Brew­er (WA); Mary Booth (MA); Ernie Reed, Heart­wood (VA); Elaine Bai­ley (WA); Judith Mann, Friends of the Earth; Nick Lapis, Cal­i­for­ni­ans Against Waste (CA); Nick Klatnick?; 

Josh Schloss­berg (Ener­gy Jus­tice Net­work, VT) intro­duces top­ic and guest speak­er. This call was record­ed. Josh asks whether there are any bio­mass indus­try folks on the call. No one responds affirmatively.

Kevin Bundy: I typ­i­cal­ly lit­i­gate on the Clean Air Act. The court rul­ing on the EPA was a big deal

Kevin: The pol­lu­tant emis­sions lim­its imposed is based on the best avail­able con­trol tech­nol­o­gy (BACT), not the best pol­lu­tion con­trol. Title V is anoth­er per­mit­ting pro­gram which gath­ers emis­sions and oth­er lim­its togeth­er in one place. There are efforts by pro­gres­sive states to reg­u­lat­ed green­house gas­es (GHGs) under the Clean Air Act (CAA). The endan­ger­ment find­ing under Mass v. EPA was a major rule in 2009–2011 that cars and light trucks are endan­ger­ing. Then the vehi­cle rule about emis­sions came about. Then atten­tion was focused on sta­tion­ary sources.

The tai­lor­ing rule made sure that the biggest sources had to go through the per­mit­ting process. The thresh­old was orig­i­nal­ly set low, and the EPA adjust­ed it upward, so that only the biggest offend­ers were lim­it­ed. The tai­lor­ing rule took effect in 2 steps, the sec­ond in July 2011. Any facil­i­ty new­er than this and emit­ting more than 100,000 tons CO2 per year or any pre­ex­ist­ing facil­i­ty increas­ing CO2 emis­sions by more than 75,000 tons would go through per­mit­ting under the pre­ven­tion of sig­nif­i­cant dete­ri­o­ra­tion (PSD) pro­gram. Many bio­mass facil­i­ties have been able to stay out of the PSD pro­gram, but even 7–8 MW facil­i­ties would eas­i­ly exceed the 100,000 tons CO2 lim­it under tai­lor­ing rule.

Burn­ing bio­mass pro­duces a lot of CO2 per unit of ener­gy pro­duced. Fed­er­al pro­grams are more strin­gent than state pro­grams. An impor­tant thing is that, even if CO2 emis­sions were the only thing that bring the facil­i­ty into pro­gram, must imple­ment review/controls for oth­er pol­lu­tants emit­ted too. indus­try freaked out, lob­bied hard for the EPA to recon­sid­er. The EPA caved under pres­sure and got the exemp­tion rule just defeat­ed in court: a ‘defer­ral rule’ it’s called, but it is a per­ma­nent exemp­tion for facil­i­ties per­mit­ted in those 3 years, 2009–2011. It exempt­ed any­thing not a fos­sil fuel from the 100,000 thresh­old or the BACT. EPA’s ratio­nale was that it had to reg­u­late CO2 like oth­er emis­sions, but it invoked excuse doc­trines rather than mak­ing the case that the CAA should exempt CO2.

The EPA claimed that it was dif­fi­cult for the EPA to fig­ure out net emis­sions, since life­cy­cle emis­sions are com­pli­cat­ed with bio­mass. Also, the rule was too broad and would inad­ver­tent­ly crack down on less prob­lem­at­ic facil­i­ties. Orga­ni­za­tions chal­lenged the exemp­tion, filed April 2011, includ­ing CBD of Maine. There was a recon­sid­er­a­tion in 2011, then the EPA rule was final­ized in 2011, and groups then filed chal­lenges to final exemp­tion rule (4 chal­lenges), col­lab­o­rat­ing on the briefs. The EPA was not even try­ing to jus­ti­fy it. The deci­sion came on april 2012, then in july went direct­ly to the DC Cir­cuit Court of Appeals: a pan­el of 3 judges, with 3 sep­a­rate opinions.

The lead opin­ion was joined by 2 oth­ers, and there was a dis­sent­ing opin­ion. The court did not decide statu­to­ry author­i­ty, but rather let the door open for the EPA to craft excus­es but put side­boards on. One of the con­ser­v­a­tive judges joined the major­i­ty opin­ion but also wrote his own, say­ing that there is no basis for dis­tin­guish­ing CO2 from oth­er pol­lu­tants. The oth­er con­ser­v­a­tive, dis­sent­ing, said the EPA is still fig­ur­ing out the sci­ence. It’s impor­tant to note the effect of the deci­sion — issuance of the man­date was delayed 45 days, the DC Cir­cuit Court is to rehear the case if any­one seeks rehear­ing, so the effec­tive date could get pushed out fur­ther. If the deci­sion sticks, then new facil­i­ties >100,000 tons per year CO2 have to go through per­mit­ting and BACT for GHGs and oth­er pol­lu­tants. This is bet­ter than most state-lev­el rules. The dilem­ma is — what is the BACT for CO2? EPA says bio­mass itself is the BACT! More facil­i­ties could rely on this bogus ratio­nale. What hap­pens to facil­i­ties that do get permits?

There still may be avenues for chal­leng­ing these. How will the EPA respond? They can no longer keep extend­ing exemp­tion with this recent court rul­ing. Indus­try is pres­sur­ing them on how they count these emis­sions. There are some big ques­tions- what hap­pens to the tai­lor­ing rule? All 4 rules have been chal­lenged by indus­try. The DC Cir­cuit Court rul­ing is now appealed to US Supreme Court, pend­ing. If the Supreme Court takes the case, and tai­lor­ing is thrown out, it would nul­li­fy our vic­to­ry. In our favor now is that the sci­ence on cli­mate change is front and cen­ter. We’ve got side­boards on GHG emis­sions reg­u­la­tion and stronger per­mit­ting for not just GHGs but oth­er emis­sions, too.

This helps push mes­sage for­ward. It’s too ear­ly to know what Supreme Court will do, but the DC Cir­cuit Court rul­ing is impor­tant to uphold­ing GHG reg­u­la­tion. Still needs to be more aggres­sive than the EPA has been to curb cli­mate change.

Ray Wash­ing­ton (FL) — A facil­i­ty here was per­mit­ted Decem­ber 30, 2010, under an agree­ment with the local util­i­ty. We’re told this facil­i­ty will not be affect­ed by court ruling.

Kevin — Don’t know enough details, can’t give legal advice. Until tai­lor­ing took effect Jan­u­ary 2, 2011, GHGs were not con­sid­ered reg­u­la­tion­able pol­lu­tants, so there was a rush to get per­mit appli­ca­tions in before 2010. That facil­i­ty prob­a­bly would not have to con­trol for GHGs, and rul­ing would not have much bear­ing. If the facil­i­ty mod­i­fied its per­mit lat­er such to increase more than 75,000 tons/year, then this would trig­ger eval­u­a­tion and con­trol under this rul­ing. Since per­mit­ted before 2011, the rul­ing does not have much bear­ing on vai­id­i­ty of those per­mits unless the facil­i­ty pro­posed a mod­i­fi­ca­tion of capac­i­ty (4–5 MW capac­i­ty) or increase in GHG emis­sions. The rul­ing applies to not just new, but also mod­i­fi­ca­tion by exist­ing facil­i­ties if they start to exceed limits.

Sami Yas­sa (Nation­al Resource Defense Coun­cil) — The EPA gave a lot of excus­es, ratio­nales for exempt­ing. We want­ed to get an idea of the court’s opin­ion on sci­ence. Is 1 pound bio­genic CO2 the same as coal-gen­er­at­ed CO2 and there­fore no exemp­tion, or did they say dif­fer­ent types of bio­mass have dif­fer­ent degrees of car­bon impact, so the same exemp­tion would be arbi­trary and capricious?

Kevin — The court did say that CO2 is CO2. The major­i­ty opin­ion stopped short of say­ing there’s no basis in the to dis­tin­guish between these. The dis­sent­ing did say so, but the major­i­ty did not. The major­i­ty said the prob­lem with exemp­tion is that it is over­ly broad, as the EPA did not real­ly tai­lor to dif­fer­ent sources based on net or life-cycle emis­sions. The EPA did not explain how they would reg­u­late, but rather exempt­ed sources all at once, say­ing that some sources had min­i­mal impact, would not make sense for them to go through per­mit­ting, but in court they said that this was only an argu­ment to invoke per­ma­nent exemp­tion. Land­fill, waste­water facil­i­ties raised ques­tions about dimin­imus effect. But they’ve had a hard­er time to make that argu­ment in for­est con­text with woody bio­mass. The EPA has a time win­dow now to make dis­tinc­tions, but whether they can jus­ti­fy it under the CAA is left open.

Sami - Did court have an opin­ion on sci­ence, to dis­tin­guish dimin­imus from not?

Kevin — Although the court was strong­ly influ­enced by the sci­ence, rec­og­niz­ing that the net emis­sions may dif­fer by feed­stock, they did not get into how to count net CO2. Courts like to leave sci­ence details to the agency, do not make sci­en­tif­ic judg­ment. In this case, the court just said EPA did­n’t have sci­ence in their exemp­tion and can­not get away with that. The court did not endorse a sci­en­tif­ic perspective.

Jim Tra­vers (NY) — I’m con­cerned about tires. The EPA has des­ig­nat­ed tires as fuel, not need­ing to be per­mit­ted. The deci­sion rein­forces apply­ing the CAA to biomass.

Kevin — Good point, this is not the only PEA rul­ing with bear­ing on bio­mass. There are also rel­e­vant sol­id waste and haz­ardous pol­lu­tant reg­u­la­tions. Some rules have exemp­tions. Bio­mass ener­gy is a very pow­er­ful indus­try, weird how pow­er­ful, with tim­ber and paper and influ­en­tial sen­a­tors onboard.

Jim — I’m fight­ing 2 local plants, cement kiln facil­i­ties, fight­ing EPA on delays.

Chris Zin­da (OR) — Ore­gon has heat­ed up recent­ly. The Seneca facil­i­ty in Eugene, per­mit­ted in Octo­ber 2010, is propos­ing mod­i­fi­ca­tion but not even sub­mit­ted yet, so there’s time. Lake­view has a mod­i­fied per­mit appli­ca­tion under­way, orig­i­nal­ly per­mit­ted Sep­tem­ber 2010. The deci­sion on the Lake­view per­mit mod­i­fi­ca­tion is expect­ed in Sep­tem­ber, too soon to be affect­ed by the court deci­sion. I’m won­der­ing how CO2 and con­den­si­ble emis­sions relate. Do CO2 con­trols con­trol con­den­si­ble? Con­den­si­bles have played a role in the orig­i­nal per­mit­ting of these 2 OR facil­i­ties. In Lake­view, its 3x more PM2.5 if you include con­den­si­ble emis­sions. Can con­den­si­ble con­trols con­trol CO2?

Kevin — Don’t know. Not much change to com­bus­tion need­ed to reduce CO2. Con­trols for oth­er pol­lu­tants often increase CO2 emit­ted. If the mod­i­fi­ca­tion does not increase CO2 by more than 75,000 tons per year, then OR rules instead of fed­er­al would apply.

Chris — Sen­a­tor Ron Wyden is Chair of the Sen­ate Ener­gy and Nat­ur­al Resources Committee.

Kevin — if you could change his mind, that would be fab­u­lous. he’s very influ­en­tial. In the West­ern U.S., bio­mass is wound up tight with fire and thin­ning. Land and for­est and fire fear issues are bound very tight­ly with bio­mass indus­try in the West­ern U.S., a tough nut to crack. Very emo­tion­al. Need to look beyond, chal­lenge this ratio­nal, pres­sure Wyden.

Chris: Robert McClure of Inves­ti­gate West did a Free­dom of Infor­ma­tion Act (FOIA) request for cor­re­spon­dence between the OR del­e­ga­tion and the EPA on tai­lor­ing, wait­ing for the info has already delayed him 6 months in com­ing out with a piece on biomass.

Kevin — I’ve FOIAed them (?) The agency will delay, string it out. Scott — I’m fight­ing con­struc­tion per­mit­ted Octo­ber 2011 of tire burn­ing facil­i­ties. They went through the process, sub­mit­ted BACT, but not for the 20% bio­mass frac­tion. Could we ask the EPA to reex­am­ine the non-bio­mass frac­tion since bio­genic CO2 = non­bio­genIc, which would increase CO2 emis­sions from 632,000 to 800,000 tons.

Kevin — I don’t know specifics, can’t advise. Seems good to revis­it and find out. If they used BACT for GHGs, then they may already have what a court vic­to­ry would do. There may not be more to do. Talk to some­one who can assess the situation.

Nick Laves? (?) — I’m inter­est­ed on the impact to com­post­ing facil­i­ties. Kevin — I’m not famil­iar with com­post facil­i­ty per­mits, not sure how that’s han­dled. If facil­i­ty is large, then might emit enough to exceed lim­it and pull it into permitting,good size enough to exceed lim­it, this rul­ing could pull it into permitting.

Mary Booth (Part­ner­ship for Pol­i­cy Integri­ty, MA) — If a 7‑MW facil­i­ty burns all car­bon, that’s 12,500 tons green wood per megawatt per year, that’s 87,000 tons tons CO2 per year. If you add methane, the total GHG emis­sions might exceed the lim­it but com­post is prob­a­bly not as like­ly to exceed as wood facil­i­ty. Kevin — I give cred­it to the coplain­tiff ors, includ­ing NRDC.

Mike Ewall (Ener­gy Jus­tice Net­work, DC) — What is the EPA going to cook up next about bio­mass. What about trash boil­ers and cofir­ing? Would any boil­er that switch­es fuels trig­ger PSD? How will it impact gas to energy?

Kevin — I have no idea what’s next. The door is open for the EPA to do any num­ber of things, includ­ing han­dling dimin­imus sources. In ear­ly exemp­tion, it looked like they were mov­ing toward an over­all frame­work. Then the sci­en­tif­ic advi­so­ry board reviewed it and said there’s not many valid short­cuts, must do cred­i­ble, labo­ri­ous account­ing. There are dif­fer­ent path­ways to cal­cu­la­tion. So they decid­ed to come out with anoth­er broad, blan­ket exemp­tion, but that has been the EPA way of doing things. Now they are more like­ly to do some­thing that looks a lit­tle more nuanced but exempts indus­try as much as they can. Before our vic­to­ry it looked like the cof­fer­ing facil­i­ties, by sub­sti­tut­ing, were reduc­ing CO2, but actu­al­ly that’s because they weren’t count­ing CO2 emis­sions from bio­mass. Now we know that bio­mass pro­duces more CO2 per unit of ener­gy pro­duced, so cof­fer­ing facil­i­ties might have to go through per­mit­ting if they mod­i­fy to increase by >75,000 tons CO2 per year. Not sure about land­fill gas, but the lim­its might apply to larg­er facilities.

Dian - I under­stand that Title V allows review every 5 years to see if the facil­i­ty is con­sis­tent with con­tem­po­rary regulations.

Kevin — Not sure how this will affect facil­i­ties reg­u­lat­ed under Title V, but they are reviewed every 5 years. This per­mit itself does not require com­pli­ance in the 5‑year interim.

? — They will review a Title V facil­i­ty if the increase is >75,000 tons CO2 per year.

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