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March 26 --The Environmental Appeals Board partially remanded an air pollution permit for a waste-to-energy facility in Puerto Rico after it failed to account for greenhouse gas emissions from biomass.
The Energy Answers Arecibo LLC permit is one of the first to address emissions from biomass in the wake of a 2013 federal appeals court decision vacating an Environmental Protection Agency rule that exempted biogenic greenhouse gases from the Clean Air Act's prevention of significant deterioration (PSD) and Title V permitting requirements, attorneys and forestry representatives said.
The EPA has yet to respond to the decision of the U.S. Court of Appeals for the District of Columbia Circuit, and forestry advocates said that is increasing uncertainty in an industry now subject to the permitting requirements.
“Our members continue to watch and hope,” David Tenny, president of the National Alliance of Forest Owners, told Bloomberg BNA March 26. “Until we get a clear signal from EPA on where things stand, we're going to continue to be in this state of waiting, watching and hoping.”
While the EPA has assured the forestry industry that it is still studying the issue of how best to regulate greenhouse gas emissions from facilities burning biomass, it has not indicated when it might propose action.
Until then, Tenny said his group is preparing its members to address greenhouse gas emissions during the permitting process.
The EPA did not respond to requests for comment.
Originally, the EPA had exempted facilities that burn biomass from the greenhouse gas permitting requirements until July 21, 2014, as the agency studied how best to regulate those emissions.
However, that rule was overturned by the D.C. Circuit in a July 12, 2013, decision.
The court found that the EPA had not adequately justified its decision to exempt emissions from biomass from the permitting requirements. However, the court left open the possibility that the EPA could exempt biomass from the permitting program permanently if it could identify the Clean Air Act authority to do so.
The D.C. Circuit has extended the deadline to request that the lawsuit be reheard before the full court until 30 days after the U.S. Supreme Court issues its decision in a lawsuit challenging the EPA's greenhouse gas permitting requirements.
On March 25, the EPA's Environmental Appeals Board ordered the agency to update the greenhouse gas emissions control requirements in a PSD permit issued to Energy Answers Arecibo to include biogenic greenhouse gas emissions.
The appeals board acknowledged that including greenhouse gas emissions from biomass would not alter the controls required and said no further public comment period is necessary.
Energy Answers Arecibo received its PSD permit June 11, 2013, from EPA Region 2 for a waste-to-energy facility in Arecibo, Puerto Rico. The facility is permitted for two, 1,050 tons per day refuse-derived fuel municipal waste combustors, a 77-megawatt steam turbine electrical generator, and other equipment.
The permit had been challenged by the Coalition of Organizations Against Incinerators.
In addition to the Energy Answers Arecibo permit, EPA Region 9 in November 2013 proposed modifications to a PSD permit issued to Sierra Pacific Industries-Anderson Division for a new 31 megawatt cogeneration unit capable of burning biomass and natural gas at its facility in Anderson, Calif. The modifications, made at the company's request, would include greenhouse gas emissions limits for the biomass combustion.
“It's just an example of how confusing it can be when you don't have a clear policy,” Tenny said.
Although the EPA has assured the forestry industry that it is working to address the issue of biogenic greenhouse gases in permitting, the agency may wait until after the Supreme Court reviews the larger greenhouse gas permitting program, Ann Weeks, an attorney for the Clean Air Task Force, told Bloomberg BNA. Weeks had argued on behalf of the environmental groups challenging the biomass permitting exemption before the D.C. Circuit.
The Supreme Court, which granted certiorari Oct. 15, 2013, in six cases challenging the EPA's various greenhouse gas regulations, heard oral arguments Feb. 24 over whether the EPA's decision to regulate greenhouse gas emissions from vehicles necessarily triggered permitting requirements for stationary sources.
How the Supreme Court decides that case could affect any EPA proposal to address greenhouse gas emissions from biomass.
“We are not hearing that they are working on anything pertaining to the applicability of GHG permitting to major sources of biomass/biogenic CO2-- and that makes sense, since the question about CO2 only triggering is solidly in front of the Supreme Court right now,” Weeks said in an e-mail.
During the oral arguments, the justices seemed to give serious consideration to a compromise position that would see only air pollutants subject to national ambient air quality standards trigger the prevention of significant deterioration permitting requirements.
In that instance, many sources burning biomass would likely escape the permitting requirements, Weeks said.
However, Tenny said the EPA has assured the National Association of Forest Owners that it is working to address biogenic emissions regardless of the Supreme Court's decision.
“The consistent message we've gotten is the Supreme Court decision is not determining the timing of their policy, but at the same time, the Supreme Court decision is what it is,” he said.
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The Environmental Appeals Board's decision is available at http://tinyurl.com/olwzydf.
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