### BEFORE THE ENVIRONMENTAL APPEALS BOARD;:;---------..., UNITED STATES ENVIRONMENTAL PROTECTION A**~CY** 

## 0 WASHINGTON, DC 

## JUN - 

## 5 2014

In re: SierraPacific Industries PSD PermitNo. SAC 12-01 ) ) ) ) ) ) ) 

# ______________________) 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 CleanAirActprevention ofsignificant deterioration ("PSD") permit, PSD PermitNo. SAC 12-01, issued byRegion 9 ofthe U.S. Environmental ProtectionAgency ("Region 9") onApril 25, 2014. 1 Previously, the Board remanded an earlier version ofthis permit to Region 9 so that the Region could hold a public hearing. Atthattime, the Board directed that "[o]nee the Region issues a final permit decision following the public hearing required bythis remand, that final permit decision and the Board's decision in this case become final agency action subjecttojudicial 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 clearthat, pursuantto section 124.19(1)(2)(iii) ofTitle 40, it "isnot requiring, and will not accept, an appeal to the Board onthe final permit decision following remand inthis case." Sierra Pacific, slip op. at 67, 15 E.A.D. at . 1Ms. Woodhouse also filed a document titled "Supplemental Petition with Attachment" on May 29, 2014. The Board has treated this filing as an addendum to herpetition.Neither Ms. Woodhouse nor Mr. Wade address intheir 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 ofreview, nevertheless argues that it is important for the Boardto accept its petition because ofthe new issues addressed by Region 9 onremand. 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, ifthe Board does not consider its appeal, "afederal court would, in effect, become the 'first-level decision maker' withrespect to issues that the Board- and EPA as a whole- has not had an opportunityto address, and as to clear errors thatthe agency as a whole has nothad 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 ofthe final permit decision is "final agency action" for the purpose of judicial review. 40 C.F.R. § 124.19(l)(2)(providingthat a permit decision is final for purposes of judicial review "upon completion ofremand proceedings ifthe proceedings are remanded, unless the Environmental AppealsBoard's remandorder specificallyprovides that appeal of the remanddecision will be requiredto exhaustadministrative 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 ofits final permit decision, although notingthe Board's determination that itwould not exercise appellatejurisdiction over the Region's decision on remand, contains otherboilerplate language that suggests appeal to the Board might be appropriate. Region 9 has explainedthat 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 ofDeadlines at 2 (June 2, 2014).Board lacksjurisdiction overthis 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 ofEnvironmental 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 ofthe foregoing OrderDismissingAppeals for Lackof Jurisdiction in the matter ofSierraPacific Industries, PSD Appeal Nos. 14-03, 14-05, & 14-06, were sent to the following persons in the manner indicated: ByU.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 Centerfor Biological Diversity 351 California Street, Suite 600 San Francisco, CA 94104 By EPA Pouch Mail: Kara Christenson Office ofRegional 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 ofResource Management Shasta County Air Quality Management District 1855 Placer Street, Suite 101
·Redding, CA 96001

Tony Jaegel SierraPacific Industries 19794 Riverside Avenue Redding, CA96049-6028 William M. Sloan Morrison & Foerster LLP 425 Market Street San Francisco, CA 94105-2482 Courtesy Copy By EPA Interoffice Mail: Brian Doster Office ofGeneral Counsel Air and Radiation Law Office U.S. Environmental Protection Agency 1200 PennsylvaniaAve., N.W. MC 2344A Washington, D.C. 20460-0001

# ~u;1WJ

Date: 

### JUN -5 2014