BEFORE THE ENVIRONMENTAL APPEALS BOARD;:;---------..., 

UNITED STATES ENVIRONMENTAL PROTECTION A ~CY 0 

WASHINGTON, DC 

JUN - 5 2014 

In re: 

Sierra Pacific Industries 

PSD Permit No. SAC 12-01 

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PSD Appeal Nos. 14-03, 14-05, & 14-06 

ORDER DISMISSING APPEALS FOR LACK OF JURISDICTION 

Marily Woodhouse, Russ Wade, and the Center for Biological Diversity ("CBD") petition 

the Environmental Appeals Board ("Board") to review a Clean Air Act prevention of significant 

deterioration ("PSD") permit, PSD Permit No. SAC 12-01, issued by Region 9 of the U.S. 

Environmental Protection Agency ("Region 9") on April 25, 2014. 1 Previously, the Board 

remanded an earlier version of this permit to Region 9 so that the Region could hold a public 

hearing. At that time, the Board directed that "[ o ]nee the Region issues a final permit decision 

following the public hearing required by this remand, that final permit decision and the Board's 

decision in this case become final agency action subject to judicial review." In re Sierra Pacific 

Indus., PSD Appeal Nos. 13-01 through 13-04, slip op. at 67 (EAB July 18, 2013), 15 E.A.D. _ 

(Order Remanding in Part and Denying Review in Part)); see 40 C.F.R. § 124.19(1). The Board 

made clear that, pursuant to section 124.19(1)(2)(iii) of Title 40, it "is not requiring, and will not 

accept, an appeal to the Board on the final permit decision following remand in this case." Sierra 

Pacific, slip op. at 67, 15 E.A.D. at . 

1 Ms. Woodhouse also filed a document titled "Supplemental Petition with Attachment" on May 

29, 2014. The Board has treated this filing as an addendum to her petition. 
Neither Ms. Woodhouse nor Mr. Wade address in their petitions the appropriateness of 

filing a challenge to the reissued permit with the Board.2 CBD, while acknowledging the Board's 

prior statement on a second round of review, nevertheless argues that it is important for the 

Board to accept its petition because of the new issues addressed by Region 9 on remand. 

Specifically, CBD points to the new Best Available Control Technology analysis undertaken by 

Region 9, which included, for the first time, greenhouse gas emissions limits on carbon dioxide. 

CBD asserts that, if the Board does not consider its appeal, "a federal court would, in effect, 

become the 'first-level decision maker' with respect to issues that the Board- and EPA as a 

whole- has not had an opportunity to address, and as to clear errors that the agency as a whole 

has not had an opportunity to correct." CBD Petition for Review at 5 (May 27, 2014). 

Under the Board's regulations, where the Board chooses not to require a further appeal to 

the Board to exhaust admininistrative remedies, the Regional Administrator's issuance of the 

final permit decision is "final agency action" for the purpose of judicial review. 40 C .F .R. 

§ 124.19(l)(2)(providing that a permit decision is final for purposes of judicial review "upon 

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" (emphasis added)). There is no question that the 

Board specifically did not require an appeal following remand. SierraPacific, slip op. at 67, 15 

E.A.D. at_. Thus, the Region's final permit decision on remand is final agency action and the 

2 These petitioners might have thought appeal to the Board was available because Region 9's 

announcement of its final permit decision, although noting the Board's determination that it would not 

exercise appellate jurisdiction over the Region's decision on remand, contains other boilerplate language 

that suggests appeal to the Board might be appropriate. Region 9 has explained that this language was 

included in the final permit decision because it "considered it prudent not to preclude interested 

parties from presenting for consideration by Region 9 and the Board any arguments as to why 

review to the Board should be available notwithstanding the above-quoted paragraph from the 

Board's earlier order." Motion for Consolidation and Clarification of Deadlines at 2 (June 2, 2014). 
Board lacks jurisdiction over this appeal. Accordingly, the Board dismisses the petitions for 

review filed by Ms. Woodhouse, Mr. Wade, and CBD. 

So ordered.3 

ENVIRONMENTAL APPEALS BOARD 

JUN -5 2014 Dated: __________ _ 

Randolph L. Hill 

Environmental Appeals Judge 

3 The three-member panel deciding this matter is composed of Environmental Appeals Judges Leslye M. 

Fraser, Randolph L. Hill, and Kathie A. Stein. See 40 C.F .R. § 1.25( e )(1 ). 
CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Order Dismissing Appeals for Lack of 

Jurisdiction in the matter of Sierra Pacific Industries, PSD Appeal Nos. 14-03, 14-05, & 14-06, 

were sent to the following persons in the manner indicated: 

By U.S. First Class Mail: 

Marily Woodhouse 

The Battlecreekalliance.org 

P.O. Box 255 

Montgomery Creek, CA 96065 

Russ Wade 

1991 Heller Lane 

Redding, CA 96001 

Kevin Bundy 

Center for Biological Diversity 

351 California Street, Suite 600 

San Francisco, CA 94104 

By EPA Pouch Mail: 

Kara Christenson 

Office of Regional Counsel, 

U.S. EPA Region 9 (ORC-2) 

75 Hawthorne Street 

San Francisco, CA 94105 

Courtesy Copy By U.S. First Class Mail: 

Rick Simon 

Air Pollution Control Officer 

Department of Resource Management 

Shasta County Air Quality Management 

District 

1855 Placer Street, Suite 101 

· Redding, CA 96001 

Tony Jaegel 

Sierra Pacific Industries 

19794 Riverside A venue 

Redding, CA 96049-6028 

William M. Sloan 

Morrison & Foerster LLP 

425 Market Street 

San Francisco, CA 94105-2482 

Courtesy Copy By EPA Interoffice Mail: 

Brian Doster 

Office of General Counsel 

Air and Radiation Law Office 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave., N.W. 

MC 2344A 

Washington, D.C. 20460-0001 

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Date: JUN -5 2014