-< t-- U ~ ~ -

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Administrator Lisa P . Jackson 

Office of the Urninistrator 

Environmental Protection AL!enc~ 

Room 3000, Ariel Rios Buildinu 

1200 Pennsylvania A~eNW, 

Washington. DC ?000~ 

CC : 

Correspondence Control Unit 

Office of General Counsel (231 1) 

U .S . En% ironmental Protection Agency 

1?00 Pennsylvania Avenue, N%V 

N'ashinoon . DC ?0=160 

Joseph hlangino 

Air Qualit~ Policy Division 

Office of Air Quality Planninc and Standards (C504-03) 

Environmental Protection Agency 

Research Triangle Park . NC 27711 

2,~!I 0 AU- -3 W I I ". 

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~Fr :LE OFF T~E , ,_ -

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BEFORE' THE I mrrED ,,,r .krEs 

ENVIRONNIE1"fAL PIZOIECTION AGENCY 

1 

National Alliance of Forest O\~~ners~ ) 

Petition to Reconsider EPA's 1 Dkt. No . EPA-HQ-OAR-'_009-0517 

Prevention of Significant Deterioration and ) 

Title V Greenhouse Gas Tailoring Rule ) 

1 

NA'r 10\A1 . ALLIANCE OF HO12F:S~r O\1 \EltS' PETHION TO RECONSIDER 

THE PREVENTION OF SIGN IFIC : "\'r DE"1'F:RIC)RATIOV 

AND -1'1'rLE V GREENI-IOl'SE (, :XS TAILORING RI'LE 

AND'r0 STAY THE RULE PF .NDlN( . RECONSIDERATION 

Pursuant to Clean Air Act § 307(d)(7)(B) . the National Alliance of Forest Owners 

("NAFO") petitions the Environmental Protection Agency ("EPA") to reconsider and stay the 

implementation of the Prevention of Significant Deterioration and Title \' Greenhouse Gas 

Tailoring Rulr i."railorine Rule") . 75 fed . ReL. : . 3) I .>14 ( .lun . 3 . 2010) . 
NAFO Petition to Reconsider and Stay the Tailoring Rule 

July 30. 1-010 

Page 2 of' 17 

In a stark and unannounced reversal of established government precedent and practice, 

EPA's final Tailoring Rule declares, f'or the first time and without any prior proposal or notice to 

industry, that it %N ill count carbon dioxide ("CO,") emissions from combustion of biomass 

to\%ard the applicabilit\thresholds that it announces for the Prevention of Significant 

Deterioration (PSD) and Title V permitting programs of the Clean Air Act (CAA) . C:PA's 

proposed rule, in line ~N Ith the past practice oi' l':PA and other agencies of the federal 

government, had provided f~)r the appropriate and opposite conclusion : that carbon dioxide 

emissions from combustion of biomass should not be counted . Given the unjustif ied reversal 

from the proposed to the final rule, and the resultant adverse impacts the Final rule tivill have on 

realizing the nation's rene~sable enerL:N 2oak . NAFO hereb~ petitions EPA to reconsider the 

final PSD Tailoring Rule and stay the implementation of the Rule pending reconsideration . 

As explained belo\ti . this about face makes the Tailoring Rule arbitrary and capricious for 

two reasons. First. I :PA has not offered a reasoned explanation for reversing the position it took 

in the proposed Tailoring Rule, for ignoring NAFO's comments that it should maintain that 

position, or for rejecting the past practice of EPA and other federal agencies re~arding carbon 

dioxide emissions from the combustion ol' biomass . Second. EPA's une\pccted chany-of= 

course in the final T ailorino Rule is not a logical outerowh of its proposed Tailoring Rulc. 

Both of these fatal faults onl~ emerged in the final failoring Rule's decision to rexerse 

past precedent and count emissions fi~om biomass. The final Tailoring Rule %Nas published on 

June 3 . 2010 . Thus. this objection First arose after the period for public comment . Mhich closed 

on December ?8, 2010 . Furthermore . as explained below, these objections go to the heart of the 

Rule's N alidits . and are thus central to the outcome of the rule . Consequently, under CAA 
N .AFO Petition to Reconsider and Stay the Tailoring Rule 

Jul) 30. ?0 10 

Page 3 of 17 

§ 3U7(d)(7)(B) . tile Administrator must convene a proceedinu fi)r reconsideration of the 

Tailoring Rule . 

:% ItGI-~IF\'(' 

I . The Tailoring Rule Reverses EPA's l .ongstanding Position \i ithout :1n% 

Explanation 

It Is Well understood that when most fuels are burned for energy. they emit carbon 

dioxide . It is eyuallN %+ell established that carbon emitted in the combustion of biomass comes 

from carbon dioxide that \tias originall\ sequestered from the air by the biomass teedstock . thus 

resulting in a carbon neutral cycle . For this reason, tile government until noN% has never counted 

emissions of carbon dioxide from combustion ol~biomass ~%hen estimating carbon dioxide 

emissions . But in EPA's final Tailorina Rule it brinLs these emissions, N\hich before had not 

been counted, into its ambitious Clean Air Act permitting programs--the PSI) and Title V 

programs. 

A . 13iomass Carbon Neutralit\ 

There is near-uni\ ersal recognition that greenhouse l:ases emitted in combustion of fuels 

derived from biomass should be excluded From greenhouse gas regulations because production 

and combustion of such fuels does not increase atmospheric carbon dioxide levels . As EPA is 

aware, growing plants absorb significant amounts of carbon dioxide from the atmosphere . 

Forest;, in particular . secluester massive amounts of carbon dioxide . The process of 

sequestration and storage is a natural by-product oftree cro%ith . Through the process of 

photos,. nthesis . tree, take up carbon dioxide from the air and in the presence of light. water, and 

nutrients . release oxygen and manufacture carbohydrates that are used for metabolism and 
NAFO Petition to Reconsider and Stay the Tailoring Rule 

July 30, ?O10 

Pa~_,e -1 of I ? 

growth of above and below uround organs . All plant materials are ultimately derived from this 

carbon dioxide, \+hich is dra" n from tile atmosphere . 

When plant biomass materials, such as biol'ucls made from forest biomass . are burned, 

the carbon dioxide emitted contains the same carbon that k%as sequestered b\ the plant 

feedstocks . Thus. the combustion of biofuels daes not result in net carbon dioxide emissions . 

All carbon dioxide emitted is a product of carbon dioxide absorbed, making the carbon dioxide 

released back to the atmosphere a net zero %% ith respect to the natural carbon cycle . 

In this manner, biofuels from forest biomass are fundamentally different from 

conventional fuels. Once coal . natural gas. or oil is extracted and combusted . it cannot be 

replaced . In contrast, the sustainable forest management practiced by the United States forest 

products industry ensures that there is no temporal imbalance between biogenic CO- etnissiMnS 

and C0= sequestration and thus no effect on the atmospheric GI IG inventor~ . Indeed, as EPA is 

a\%are . carbon stocks in United States forests have been, and continue to, increase .' ~I~hus, the 

lorest bioenerg) industry is truly carbon dioxide neutral . 

E3 . 13iomass Carbon Neutralit\ Is Recounized Both Dornesticall\ a.nd International Iv 

The concept of biomass carbon dioxide ncutralitN is %% idel\ recognired internationally. 

The Intergovernmental Panel on Climate Change I'uidance and United Nations I-ramc\.kork 

Con\ ention on Climate Chanoe reportinL, protocols b0th recognize the carbon neutrality of 

' EPA has explained that "improved forest management practices. the regeneration of pretiiously cleared forest 

areas . and timber harvesting and use have resulted in net uptake (i .e ., net sequestration) of [carbon] each )car from 

1990 through '?008 ." EPA . lttl~eiir~rrt c if! S Gr-afnhutr .ce Cias F.mtssic,rls arrc~Sntks 1491)-?rlO~S at 7-13 f :lpril I~ . 

?0101 ( .,[PA ?010 Imentorn") . tit lii!lrhi< <tt http~ epa ec,~ elimate,:lt3 .i_' ., eiiti's,ions c1w,~ ;iloads1(l L S-GHGlnventory-_' 010 Report .pdt : 
Nr1F0 Petition to Reconsider and Stay the Tailoring Rule 

Jul% 30. 2010 

Pa2e 5 of 17 

biomass . Similark, the European Union ("E( :") directiNe on carbon trading specifies "Biomass 

is considered as C02-neutral ."~ 

Biomass CO, neutrality has also been the loundation of American policN . As the ITA 

has concluded. there is "[sJcientific consensus . . . that the CO, emitted from burning biomass 

will not increase total atmospheric CO, if this consumption is done on a sustainable basis ."' 

EPA's Mandatory Gf IG Reporting Rule uses an expansive definition of biomass and does not 

include biogenic CO, in its reporting threshold. Similarly, the Department of Energy's (1)OE's) 

VoluntarN Reporting of Greenhouse Gases Program . authorized by Section 160>(b) of the 

Eneruv PolicN Act of 1992 . pro% ide ; Icrr e\elusion of combustion of biornass fuels.' Thus, a 

strong consensus exists that treating comhustion ofbiomass as carbon neutral is scientiticallN 

,OunJ . 

C. The Proposed Tailoring Rule rppropriatek Recognized That l ;iomass Em issions 

Are Carbon Neutral and Did Not Count Them To%%ard Permittin<, Thresholds 

EPA's Tailoring Rule Proposal maintained the government's traditional rule at~ainst 

counting carbon dioxide emissions from combustion of biomass toward the applicabilit., 

thresholds it proposed for the PSD and Title V permitting programs . It dictated that for "the 

applicable [global warmin~ potentials] G%'1"Ps" of individual ;reenhouse gases and "for guidance 

on ho%k to calculate a source's GI IG emissions in tp~ CO?e." sources should relN on "FP ,A's 

' EU ouidelines for the monitoring and reporting of grcenhouse gas emissions . Annex I . 4? .? 1 .6 . civailuble al 

http inni .paci n st .or~~ inni ctimate chanec EL Guideli nesGHGJan'_o0- t_o0-t ~. 

'Environmental Protection :1gencN Combined lleat and PoN%er Partnership, 13iomass Combined lleur crrrd Poll er 

Cululelg qJ Tecltnolcrgies . 96 (Sept . ?007), .jrciil .rhle af t, % +~e .ega .ra ~ 'hp documents hiomass Chp calali}i; [+df 

' See DOE. Technical Gradelrnzs . 1'olhrruco,t Repur;irrg u/ Grefnirot01' i+cu"A IlClijlhp 1'rugrcrrn at 77 t-Reporters 

that operate sehicles usin- pure biofuels ~tiithin their cntit% should not add the carbon dio\ide emissions from those 

fuels to their im-entorN of mobile source emissions be:ause such em :s ;ions are considered bio4_enic and the 

rec%cling of the carbon is not credited elsewhere .") . 
NAF0 Petition to Reconsider and Stay the Tailoring Rule 

Jul% 30, ?010 

Page 6 of 17 

"lnvzntory of U .S . Greenhouse Gas Emissions and Sinks."' ; The inventory correctl\ excludes 

emissions from "combustion of biomass and biomatis-based fuels," based on the principle of 

carbon neutralit)-"[iJt is assumed that the C released during the consumption of biomass is 

recycled as U .S . forests and crops reuenerate. causing no net addition of C02 to the 

atmosphere."" The Mentory elaborates on this reasoning in the context of %soody biomass . 

stating "in the long run the C02 emitted from bioma;s consumption does not increase 

atmospheric C02 concentrations . assuming that the bi~~genic C emitted is offset b% the uptake of 

C02 that results from the uro~slh of neks biomass ."' Thus . "C02 emissions fi-om biomass 

combustion have been estimated separatel\ from fossil fuel-based emissions and are not included 

in the U .S . totals ."' 

In comments submitted on the proposed Tailoring Rule. NAFO recognized that EPA had 

appropriately provided that biomass emissions would not be counted to%%ard applicability 

thresholds . In accord %\ ith NAFO's aim of "develop[int;J a strong collaborati%e relationship" 

\sith I :PA ." NAFO supported this pro` ision . N :1F0 noted that a shift to "treating combustion of 

biul~uels similar to combustion ohfossil fuels \wald ha\': cerious negatiN e consequences. 

' Prevention of Significant Deterioration and Title 1' Greenhouse Gas Tailorin_g Rule, 74 Fed . Reg. 55 .292, _55, ;51, 

55,352, 55?61 (Oct. 27, 2009). 

` EPA, Inventor) of U -S . Greenhouse Gas Emissions and Sinks: 1990-1997 at Energti 3-I-3-? . 

' !d. at Enerpy 3-59 . 

a ld. 

" National .allian-e of Fore,t 0%, tiers' Comments on Prevention of Significant Deterioration and Title ~' Greenhouse 

Gas Tailoring Rule, EPA-H(,)-O : " R-2009-05 17-5070, Attachment at 1, 

' ° ld. at 6-7 . 
NAFO Petition to Reconsider and StaN the Tailoring Rule 

JuI~ 30. 2010 

Pat'e 7 of 17 

Given the importance of this provision. NAFO requested that EPA further affirm and articulate 

the provision in the preamble to the final rule." 

D. The Final Tailorine Rule Reversed Course ~~~ ithout Any Reasoned Explanation 

The Final Tailoring Rule reversed course without explanation, severing the threshold 

calculations from the inventory's rule against counting emissions from combustion of biomass . 

EPA removed the inventorN entirely from the final rule. N+ithout explaining why this was 

appropriate . Instead, in the final rule. EPA simplv stated that the G1ti'Ps of individual 

greenhouse gases. which are also contained in the in4entor\ . should instead be codified by 

EPA. 

11 

EPA gave no explanation at all \\h\ it had decided not to use the in~entor\ for the other 

purpose identified bv the proposed rulc--L'uid :rnce on ho\s to calculate a source's GI-IG 

emissions in tp) C02e."" 

EPA simpl\ ignored NAFO's comments . It made no reierence to NAF()'s support for 

the proposed rule's incorporation of the ;;o\ ernml'nt's preexisting and longstanding polic\ 

against counting carbon dioxide emissions from biomass as embodied in the inventory . Nor did 

EPA give any reasons for its about-face . Instead . EPA completely mischaracterized NAFO's 

argument . Rather than addressing the proposed rule's provision for treating biomass in 

accordance \ti ith the inventory and the go%ernment's longstanding rule. EPA instead only 

addressed a "request that EPA t.Te117p emissions from biogenic activities or biomass 

combustion ." 1 ' NA1~0 did not request that I :PA excnrpw biomass emissions from tile PSI) 

~ ~ rd. 

'- 75 Fed . Reg. at 31.5 .12 

" Proposed Tailoring Rule at 7-t Fed Reg. at 55.?51 . 55,152 . 55 .361 . 

" 75 Fed. Reg. at 3 1 .590 (emphasis added), 
N :\F0 Petition to Reconsider and Stay the Tailoring Rule 

July 30. 20 10 

Page 8 of 17 

program ; there was no need to request such an exemption because. Under the proposed rule, and 

under Ion-standing government policN . such emissions \\ere not counted . To the contrary . 

NAFO's comments merel\ soueht to reinforce the then long standing status quo . not to request 

EPA create ne\\ exemptions . 

Ultimately, EPA attempted to address the question of biomass neutralit~ onl~ indirectl\ 

in the final rule. but ultimately made a decision wth significant new impacts. Having first 

removed the reference to the inventory's proe ision for biornass neutrality, and thus . for the first 

tirne, including biomass emissions in the pennitting program . EPA next purported to consider 

whether biomass should be exernInecl from the permitting program.'' EPA stated that it was 

"mindful of the role that biomass or biogenic fuels and feedstocks could play in reducing 

anthropogenic GHG emissions, and [did] not dispute the commcnters' observations that man\ 

state, federal, and international rules and policies treat biogenic and fossil sources of CO2 

emissions differently .-'6 EPA then concluded that the doctrines it used to set tile tailoring 

Rule's permitting thresholds-the '**absurd results .' 'administrative necessity .' and one-step-ata-time"' doctrines-did not support an exemption lor biomass emissions of carbon dioxide . and 

so determined that biomass emissions should be counted to%~~ard these thresholds .' 

This is not reasoned and informed decisiontnaking on an issue of critical importance to 

the nation's rene\s able energy goals .', EPA ne\ er gave an\ reason at all for coufuing biomass 

'' 75 Fed . Reg. at 31 .590-91- 

II 1,1. ; Id. 

",tfotor I eiti~le .111rs :iss'n v Stutz l~arrn .11u .11110 Ins Co., 463 U.S . ?9, 9 3 (1983 ) (an ac;ency must "articulate a 

satisfactory explanation for its action including a rational connection bet~Neen the facts found and the choice made ." 

(internal quotation omitted)l . 
NAF0 Petition to Reconsider and Sta\ the tailoring Rule 

July 30,'010 

Pa~ze 9 of 17 

emissions for the first time. While oenerally eapressitnc uncertaint\ about the propriety of 

counting biomass emissions . the only arguments that EPA actually accepted on the issue 

militated against counting biomass emissions-EPA acknowledued that -many state, federal . 

and international rules and policies" do not count biomass emissions in the way that I'ossil fuel 

emissions are counted and that biomass fuel could play a role "in reducing anthropogenic GHG 

. ;y cmissions.' 

EPA's stated reason for not excluding carbon dioxide emissions from biomass is that its 

absurd results, admini,trati\e necessit\ . and one-step-at-a-time doctrines do not justifN such an 

exclusion . But EPA offers no rational basis for its Unpt"ecedentod decision to includc such 

emissions. After all . EPA's proposed rule did not cite these doctrines ill Support 0l'thC 

inventory's proN ision not to count bromass emissions, I_hese emissions \\ere not left out of the 

proposed Tailoring Rule because of its unique supporting doctrines : they NN ere left out because 

that is the general rule for calculating greenhouse gas emissions. as reflected in EPA's 

"InventorN of U .S . Greenhouse Gas Emissions and Sinks." EPA did not explain why that rule 

should no longer appl\ 

l'undamentallN . EPA never explained its decision to reverse course . In particular : 

" I-PA ne\er explained \khy the in\ entory should no longer be used for guidance on how to 

calculate a source's emissions or responded to \AfO~s comments that the inventor\ . and 

its provision for not counting biamass emissions, should be maintained. Cctnsequentl~ . 

EPA's final rule is arbitrar\ and caprici0us .-~) 

" 7; Fed Reg. at 31 .590 ' : I 

`o See :trn Mining C'ongress r F'P.-t, 907 I~ .2d 1179, 1190 -91 (D.C. C ir . 1990) I"[ f]he azencq's tailure to respond 

to . . . specific challenges in the record is fatal here, since 'the points raised in the comments were sufficientl) 
NAFO Petition to Reconsider and Stay the -I~ailoring Rule 

July 30, 2010 

Pa2e 10 of 17 

EPA never explained why it %%as altering the treatment of biomass emissions that it had 

proposed. hhis also means its rule is ;trbitrarN and capricious.-' 

EPA ne%er explained ~~hN it ~N as rejecting the "man~ state . 1cderal . and international 

rules and policies" %Nhich it acknoMedged did not include biomass emissions. 75 Fed. 

Reg . at 3 1 .590-91 . Nor did EP'~ explain MhN it decided to re%erse the position it took on 

biomass emissions in the 61-ICJ Reporting Rule . Again, this makes EPA's rule arbitrar~ 

and capricious . An avency must treat "similar cases in a similar manner unless it can 

provide a legitimate reason for failing, to do so .""' 

EPA ne~er responded to the comments submitted bN N:1f=0 and other groups on this 

topic, necessitating EPA reconsider its decision in a transparent and public process Mhere 

it fullN considers stakeholder input . 

EPA's Call for Information Does Not Cure the Deficiencies in the Final Tailoring 

RulC 

On Jul . 15 . 2010 . EPA issued a "Call Ivr Iniurmation" on the appropriate treatment of 

emissions from the combustion o!'biomass.~' But the call fur information. ofcourse. does not 

satisfy EPA's dutNto "articulate a satisfactory explanation for its action" in the 7(rilurir7g 161e. 

central that agency silence . . demonstratels) the rufemaking to be arbitrary and capricious ."') ; see also Home Box 

U(lice, Inc % FCC, 567 F.?d 9. 35-36 (D.C . Cr . 1977). 

-' CAA § 307(d)(6)1A)1"The promulgated rule shall be accompanied bN . . (ii) an explanation of the reasons for any 

major changes in the promulgated rule from the proposed rule,") . See Xso Uotor Vehicle Ifirs .-1ss'n, 463 L.S . at 

43 . -' Br;rcco Diagnostics v Shakifa . 963 F. Supp 30. 27 (D t) .C . 19971 (enjoining FDA from treating ane product as a 

new drug when FDA had classified similar product as a devicej. 

'' Call for Information : Information on Greenhouse Gas 1=missions Associated With t3ioenergy and Other Biogenic 

Sources "Call for Information" . 75 Fed . Reg . -t1 .173 IJiil~ I>,'_010) . The Call for Information, unlike the Tailorin4_ 

Rule, at least mentioned the inventor . and requested comment on whether it was appropriate to apply the inventorN 

to the PSI) program 1.L at -11 .17-3-7z~ 

''Motor (ehicle tliis .Ass'n .-I63 L .S, at 43 . 

10 
NAf O Petition to Reconsider and 5ta)the -I ailoring Rule 

Jul-, 30, 2010 

I a~~e I 1 o1' 17 

That action must stand or fall on its own terms . Perhaps anticipating this problem . I :PA, in the 

call for Information, asserted that '-the Tailoring Rule did not take final action one way or 

another concerning such an eXclusion [for biomass emissions] .-2i But EPA has finally adopted 

the Tailoring Rule: its provisions are no%\ codified in the Code oi~Federal Regulations. And . as 

noted. the final Tailoring Rule eliminates the proposed Tailoring Rule's reliance on the 

inventory, which embodies the government's traditional stance on emissions from biomass . 

\Vhile NAFO has no ob,jection to EPA's dccision to studN this issue further in the call li~r 

information . it must restore the status quo in the interim to its prior position until it can articulate 

a defensible and rational basis for changing such position . 

Whether or not EPA e\entuall~ alters tile PSI) prograrn's treatment ol~ biomass 

emissions . as of no%s, it has rejected the proposed rule's pro% ision for carbon neutrality, and 

NAFO's comments supporting that proposed rule . And of course. the Tailoring Rule is slated to 

go into effect regardless of what happens to the call for information . EPA has not given anN 

timeline for responding to the call for information . nor has it made the Tailoring Rule's treatment 

of biomass emissions contingent upon responding to the call for information before the failoring 

Rule makes greenhouse gases part of the PSD program on January 2 . 2011 . ''' Consequently, the 

call lor information cannot cure the deficiencies in the final "I-ailorinu, Rule . 

IL The Final Tailoring Rule Is Not :X Logical Outkro%+th (it' tile I'l-oposed Rule 

ii ~1s noted . tile proposed fail~~ring Rulc had pro%ide~i tllat c~~n1busti~~n t1f hiomass %soul~ 

continue it) be regarded as carbon neutral . in line ~tiith 1:P,1 and the government's consistcnt 

-' Call for Information, 75 Fed. Rev. at 41 .173 . 

-' 40 C1: .12- `§ 5??t(b)(49')('v) . 51 16G(b)(-t8)(v) . 40 CFA_ $ 70? . II 
Nr'1F0 Petition to Reconsider and Stay the Tailoring Rule 

July 30, 2010 

Paiz,e 12 of 17 

practice . ETA did not give anN %tiarning that it might change course . EPA did not suggest that it 

might, for tile first time. Subject biomass emissions of carbon dioxide to the same controls as 

fossil fuel emissions . Nor did EPA request comment on whether its proposal not to count these 

emissions was appropriate . Indeed, the preamble to the proposed Tailoring Rule made no 

mention of emissions from biomass at all I h . 

only pro% ision on biomass %%as the pro% ision of 

the reLulations that dictated that emissions be calculated b~ reference to EPA's "Inventory of 

U .S. Greenhouse Gas Emissions and Sinks." which directs that biomass emissions of carbon 

dioxide not be counted . 

ConsequentlN . EPA's final rule is not a logical outgromh of its proposal . Interpreting the 

Clean Air Act, the D .C . Circuit had noted that. "Given the strictures of notice-and-comment 

rulemaking. an agency's proposed rule and its final rule may differ only insofar as the latter is a 

'loaical outeromh' of the former."-' This rule exists because the public "must be able to trust an 

agency's representations about \\hich particular aspects of its proposal are up lor 

consideration .""' Consequentl~ . courts will strike dLMn that avency action that seeks to "use the 

rulemaking process to pull a surprise s\% itcheroo on regulated entities ."-' 

EPA gave no indication that the federal government's lone-standing treatment of biomass 

emissions . embodied in its inventor\ and its proposal . ~'`as suddenl\ up for grabs . In this respect . 

this rule is much like the one rejected :1-utioncit .1liiring .-1ssociation t ". Mine SaJety und 1-Itnltft 

.1,,1miai,ircrtiufl .'~ in «hich the U .C . Circuit rejected an aync ., argument that final rules that 

=' Envrl. Inlegri(ti~Project v EPA, 425 F .-id 993, 9961D.C. Cir ?005). 

-' Id. at 998 . 

'" Id. 

3u ) IG F .3d -520, 5 .3 1 1 D .C' . Cir 1997). 

12 
NAF0 Petition to Reconsider and Stay the l ailoring Rule 

Jull, 30. 2010 

Pat:e 13 of 17 

changed longstanding preshift examination requirement for miners could be a logical out~ro%tith 

of a proposal that left that aspect of the rules unchanged . 

The D .C . Circuit elaborated on this rule in another analogous decision. Enviromnentcr1 

Irrtegriti~ Proiect v. EPA . In that case, EPA ar1,1ued that it met its notice-and-comment 

obligations "because its final interpretation %sas also mentioned (albeit negatively) in the 

Aeenc~ ~s proposal .-' ' The Court emphatically rejected this argument : 

I lo~sever . this argument pro%es tot) much . ll~the AP.-N's notice 

requirements mean anything. they require that a reasonable 

commenter must be able to truSt an agency's representations about 

Which Inuriiculcar aspects of its proposal are open for consideration . 

:'1 contrary rule \Wuld alloNs an agencN to rejei:t innumerable 

alternati~es in its Notice ol~Proposed Rulemaking only trr justity 

urrv final rule it miaht be able to de~ ise b\ Mhimsically ric4,ittu and 

' 

choosing \s ithin the four corners of a lenvthy "notice . 

-3- 

The court concluded that "Whatever a 'logical outgro%sth' of [EPA's] proposal may include. it 

certainly does not include the AgencN 's decision to repudiate its proposed interpretation and 

adopt its inverse .-'3 The same is true in this case, EPA's complete about-face on carbon 

neutrality was not a logical outgrowth of its proposal to follow the government's traditional 

carbon neutral policy . particularly \\hcn I :PA ~tave no ~\arnintt that it was considering a different 

tack . 

Ill . EPA Nlust Convene A Proceeding For Ilecmusideration ol~ the Tailoring Rule and 

Sta,% Implementation Or the Tailoring lit, le 1'ending Reconsideratiun 

31 Envfl Irr1egritY Proiect v LP:1, a?5 F . 3d at 998 

'- /d. (internal citations and quotations omitted) 

:3 

Id . 

13 
NAF0 Petition to Reconsider and Stay the Tailoring Rule 

July 30, ?010 

Pat;e 1-l of 17 

In general. administratke reconsideration rrauires balancing the desirabilit" ol'finalit% 

versus the public interest in reachin2 the r,,-,ht result .'-' In this instance . ( :P:'1 has acknoMedged 

that there is no pressing need for finalit%-in its call for information . EPA aftirmativel% asserted 

that it had taken no final action on emissions from biomass combustion because it "did not have 

sul~l icient inf'ormation to address the issue of* the carbon neutrality of bio-genic energN ." `' Thus. 

the only relevant consideration is the public interest in reaching the right result . As noted abo%e. 

the public interest in reaching the right result weighs hea%il~ in favor of reconsideration . EPA 

has changed the pre-existing status quo regarding carbon neutralit\ in ignorance of comments of 

direct relevance to the Tailoring Rule's treatment of biomass emissions. which is an area of 

central importance to the Tailoring Rule's GI 1Ci permitting regime . These comments 

demonstrate that EPA's about-t'ace on carbon neutrality is unjustified as a matter o(' law or 

policy. Rather than prejudge this issue. as t :P :\ has done in the Final Rule. it should restore the 

status quo ante on this issue to the position articulated in the Proposed Rule . 

Furthermore, NAFC) has satisfied the Clean Air Act's standard l~or administrati\1e 

reconsideration and a sta\ . Both of these laults onl~ emerged for the lirst time in the final 

Tailoring Rule's decision to reNerse course and count emissions from biomass . The final 

Tailorina Rule \%as published on June 3, 2010 . Thus . this objection first "arose after the period 

for public comment," ;1 Mhieh closed on December 28 . 2010 . Furthermore . as noted, these 

objections go to the heart ot the rule's validit\ . and are thus "of central relevance to the outcome 

) . "C'ivil .-ierurratrlics Board ". Uelryt .-trr Lines Lrc 367 U .S 316. i31 41961 

'' Call for Information, 75 Fed . Reg . at -11 .173, 

`` 42 U .S .C ; 76t)7(d)(7)(H) 

14 
'slAFO Petition to Reconsider and Stav the Tailoring Rule 

July 30. 2010 

Pai4e 15 of 17 

of the rule."" Consequently . under CAA § 3b7(d)(7)(B) . the Administrator must convene a 

proceeding for reconsideration of the Tailoring Rule. 

Pending reconsideration . the Administrator should stay the application of the PSD and 

Title V permitting programs to emissions of carbon dioxide from biomass .38 Under the 

Administrati% c Procedure Act ("APA"). 1hen an agency finds that justice so requires. it tna,% 

postpone the etfecti% e date of acti«n taken h~ it, ponding judicial re% 

standard to Clean Air ;1ct cases . 

EPA applies this 

The standard ior such an administrati% c sta% is signiticantl% different from the standard 

for a stay used by the courts because it does not require a demonstration of' irreparable harm . 

'['his is clear from the text of APA : 

When an agency finds that justice so requires. it may postpone the 

el'fectiNe date of action taken bN it . pendingjudicial revie« . On 

such conditions as mav be required and to the extent necessar% to 

prek ent irreparable injur~ . the re% ie\~~inv cOurt . . . . maN~ issue all 

nccessar~ and appropriate process to postpone the effective date of 

an agency action or to preser% : status or rights pending conclusion 

of the revie\~ ~ procecdini,,_s . 

Thus. the .1P :N deliberately contrasts ~~hat is required for an administrative sta\= justice so 

requires"-and a judicial stay-"conditions as tnay be required'' and "irreparable harm." Such 

_; ' Icy. 

'g Id IFthead ministrator belie% es that the application of these permitting programs to biomass cmis,ions cannot be 

separately statied, the administrator must staN -30 CF .R . 5_''116)(-19)(~) . 51 .1661b)(48)(v) . and the %sords 

"unlcss, as of 1ul~ I . 2011 . the GHG emissions are at a stationar) source emitting or having the potential to ernit 

100,000 tp)Cn'_ equivalent emissions" from 40 CI- .R ` 70? 

'SS(.: .5 .C§ 70 ; 

"Ohio ,-ipprovul and1'ronitiJgarioa7 oflirtPlernenration Pluru, -J6 Fed. ReB. 8,581, 8.58? n.l (Jan . 37, 1981). 

l 
NAFO Petition to Reconsider and Stay the Tailorino Rule 

Jul) 30 . ?010 

Pav-e 16 of 17 

ditterences must be given eftect .4( so there is no irreparable hartn requirement for an 

administratiVe sta` . 

Justice requires a stay of the application ofthe PSI) and Title V permitting programs 

emissions of carbon dioxide from biomass. I :PA has not asserted that there is any benefit from 

including such emissions; instead it has disclaimed making any decision on this question ."'' In 

fact, EPA's only statements on the specific issue suggest that applying the programs to such 

emissions is harmful . ;3 Indeed, applying the permitting programs to these emissions will cause 

the marketplace for biomass energy to stagnate . ]'his stagnation \N ill reduce overall renewable 

eneruv capacity and frustrate the federal polic\ of sustainabl\ producing a reliable suppl\ of 

rene\~~ablt energ~ . Finalk . as explained abo\e . I:P:1's decision to apply the permitting programs 

to such emissions is unlam ful . 

CONCLUSION 

For the foregoing reasons. the Administrator mtist cun% et1r d procccJing 1<or 

reconsideration of the Tailoring Rule and stay implementation ofthe Tailoring Rule pending 

reconsideration . 

" "[W]here Congress includes particular language in one section of a statute but omits it in another section of the 

same Act, it is -generally presumed that Congress acts intentionalk and purposely in tlte disparate inclusion or 

exclusion." lrrossello r C:nitedS<<rl,?s, -t64 t .' .S . 16 . 33 (1983 1 Iquotatuon marks and citation ornitted : alteration in 

original)- 

'2 Call ii)r Inlormation . % 5 Fed . Keg. at 4 1 .173 . 

°' 75 Fed. Re~ at ±1 .590-91 . 16 
NAF0 Petition to Reconsider and Stay the ~failoring Rule 

July 30, 2010 

Page 17 of 17 

Respectfull\ submitted. 

David P. Tenny 

President and Chief 1--xecutive Officer 

National Alliance of Forest 0%\ners 

Df Cotinsel 

Rog er R. Martella, Jr . 

Rachel D. Gra\ 

James W. Coleman 

SIDLf:h' AU ~S FIN, LLP 

1501 K Street, 1`A1' . 

Washin-ton . D .C . ?000> 

(202) 736-8000 (phone) 

(202) 736-871 i (facsimile) 

:1T'TACIiNIE1T : National Alliance of Forest Owners' Comments on Prevention of 

Significant Deterioration and Title V Greenhouse Gas Tailoring Rule 
N/,~FO 

December 28, 2009 

Via electronic filing 

EPA Docket Center 

EPA West (Air Docket) 

Attention Docket ID No . EPA-HQ-OAR-2009-0517 

Environmental Protection Agency 

Mailcode : 2822T 

1200 Pennsylvania Avenue, NW 

Washington DC 20460 

Re : National Alliance of Forest Owners' Comments on Prevention of 

Significant Deterioration and Title V Greenhouse Gas Tailoring Rule 

Docket EPA-HQ-OAR-2009-0517 

Dear Sir or Madam 

The National Alliance of Forest Owners ("NAFO") welcomes the opportunity to 

submit the following comments in response to the Environmental Protection Agency's 

("EPA") Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring 

Rule ("Tailoring Rule") 74 Fed . Reg . 55292 (Oct 27, 2009) . As described below, NAFO 

and its members bring unique perspectives and solutions to the discussion of how to 

address climate change . We hope to continue to develop a strong collaborative 

relationship with policy makers in Congress and federal agencies as we explore together 

how our nation's private forests can play a significant role in reducing the nation's 

greenhouse gas (°GHG") footprint . 

NAFO's mission is to protect and enhance the economic and environmental 

values of private forests through targeted policy advocacy at the national level At the 

time of this submission, NAFO's members represent 74 million acres of private forests in 

47 states . NAFO was incorporated in March 2008 and has been working aggressively 

since then to sustain the ecological, economic, and social values of forests and to 

assure an abundance of healthy and productive forest resources for present and future 

generations 

In recent years, both domestically and abroad, there has been an increased 

focus on the role forests can play to address climate change . First, forests in the United 

States serve as the nation's most significant natural carbon sink capturing carbon 

dioxide ("CO2") through photosynthesis and sequestering CO: naturally . Second, 

responsibly managed forests and harvested wood products have the potential to provide 

further prospects for reducing atmospheric COZ by providing biomass for renewable 

energy such as electricity generation and transportation fuels, that have lower lifecycle 
COz emissions than fossil fuels . Third GHG regulatory regimes can be developed to 

allow offset credits from responsibly managed forests and harvested wood products to 

be generated and traded, providing a flexible, cost effective way for regulators and 

industry to achieve net GHG reductions. 

Collectively, our nation's private forests are a fundamental means of helping our 

country reduce overall GHG concentrations through biogenic carbon storage, renewable, 

low carbon energy production, and the generation of emission offsets that provide 

greater flexibility to other industries NAFO looks forvvard to the upcoming opportunities 

to share its expertise and capabilities with EPA and other decision makers to achieve a 

full array of GHG mitigation benefits 

Summary 

NAFO observes that, in the Tailoring Rule, EPA has appropriately proposed a 

methodology that excludes biogenic emissions from EPA regulation of stationary 

sources under the PSD and Title V programs of the Clean Air Act ( " CAA") . NAFO urges 

EPA to maintain this sound decision and policy in the final Rule . In Part I, NAFO 

explains why it is proper to exclude such emissions and respectfully suggests that EPA 

clarify this exclusion further in the final Rule . 

Part II explains why the CAA does not authorize EPA to regulate private forests 

as stationary sources under the CAA . It also describes why efforts to manage forests 

responsibly to achieve and enhance biogenic carbon capture and storage opportunities 

should be voluntary and collaborative . 

Finally, Part III reinforces NAFO's strong commitment to work collaboratively with 

the government to fashion climate change solutions 

EPA IN THE FINAL TAILORING RULE SHOULD CONFIRM ITS PROPOSED 

METHODOLOGY THAT WOULD EXCLUDE BIOGENIC EMISSIONS FROM 

TRIGGERING PREVENTION OF SIGNIFICANT DETERIORATION 

PERMITTING REQUIREMENTS 

NAFO is well aware that EPA is embarking upon a complex regulatory regime 

that for the first time would authorize the Agency to regulate greenhouse gases from 

certain sources of those emissions Specifically, while EPA has proposed to directly 

regulate greenhouse gases from cars and light duty trucks, at the same time EPA has 

taken the position that such reguiation will trigger Title V and Prevention of Significant 

Deterioration ("PSD") permitting requirements for greenhouse gases at millions of 

stationary sources around the country . 74 Fed . Reg at 55294 . NAFO recognizes that 

numerous commenters on these rules dispute EPA's conclusion that the regulation of 

greenhouse gases from cars under Section 202 of the Clean Air Act necessarily will 

trigger PSD permitting requirements for such sources . However, NAFO in these 

comments focuses on reinforcing a particular conclusion that at a minimum is implicit, if 

not explicit, in EPA's proposed Tailoring Rule that biogenic emissions under no 

circumstances trigger PSD permitting requirements for sources of such emissions . In 

other words, NAFO respectfully urges EPA, should it decide to proceed with a final 

Tailoring Rule, to reaffirm and reinforce its position that any overall regulation of 

greenhouse gases from mobile and/or stationary sources does not inadvertently sweep 

in combustion of biomass fuels . 
A. EPA Should Not Regulate Greenhouse Gases From Combustion of 

Biomass Fuels Because Production and Combustion of These Fuels 

Causes No Net Emissions of Greenhouse Gas 

There is near-universal recognition that greenhouse gases emitted in combustion 

of fuels derived from biomass should be excluded from greenhouse gas regulations 

because production and combustion of such fuels does not increase atmospheric carbon 

dioxide levels . Simply stated, the carbon emitted in the combustion of biomass comes 

from carbon dioxide that was originally sequestered from the air by the biomass 

feedstock, thus resulting in a carbon neutral cycle. 

As EPA is aware, growing plants absorb significant amounts of carbon dioxide 

from the atmosphere Forests, in particular sequester massive amounts of carbon 

dioxide . The process of sequestration and storage is a natural by-product of tree 

growth . Through the process of photosynthesis trees take up carbon dioxide from the 

air and in the presence of light, water, and nutrients release oxygen and manufacture 

carbohydrates that are used for metabolism and growth of above and below ground 

organs All plant materials are ultimately derived from this carbon dioxide, which is 

drawn from the atmosphere 

When plant biomass materials, such as biofuels made from forest biomass . are 

burned, the carbon dioxide emitted contains the same carbon that was sequestered by 

the plant feedstocks . Thus, the combustion of biofuels does not result in net carbon 

dioxide emissions. All carbon dioxide emitted is a product of carbon dioxide absorbed, 

making the carbon dioxide released back to the atmosphere a net zero with respect to 

the natural carbon cycle. 

In this manner, biofuels from forest biomass are fundamentally different from 

conventional fuels . Once coal, natural gas, or oil is extracted and combusted . it cannot 

be replaced. In contrast, the sustainable forest management practiced by the United 

States Forest Products Industry ensures that there is no temporal imbalance between 

biogenic C01 emissions and CO2 sequestration and thus no effect on the atmospheric 

GHG inventory . Indeed, as the following EPA chart indicates, carbon stocks in United 

States forests have been, and continue to, increase. EPA acknowledged that "total 

carbon sequestration in the U .S . in 2006 removed approximately 13 percent of total U S 

emissions," and the graph indicates that forest biomass accounts for the bulk of that 

sequestration Thus, the biofuel industry is truly carbor dioxide neutral 
Estimates of Net Annual Changes in Carbon Stocks 

for Major Carbon Pools 

T 

K 

C 

O 

.0_ 

V 

u 

50 

Soil 

Harvested Wood 

Z 

4 

N 

O 

.5p - 

-10 a ', 

-150 -~ 

.200 ~ 

-250 

Total Net Change 

O N C") d tn ca ti GO V1 O N m ~7 Y9 W 

p~ Qf ef pi pf Of M Q1 Of M O O O O O O O 

Q~ p~ C~ pf Cf Of O~ 01 O O O d O O O 

~ r r r r r ~ r N N N N N N N 

EPA Inventory of U .S . Greenhouse Gas Emissions and Sinks 1990-2006 .' As EPA 

approaches greenhouse gas regulation for various sources of emissions, the Agency 

should take care not to undercut the growth and appropriate management of these 

forests with ill-considered stationary source regulations that adversely impact private 

forests . 

The concept of biomass carbon dioxide neutrality is widely recognized 

internationally . The Intergovernmental Panel on Climate Change guidance and United 

Nations Framework Convention on Climate Change reporting protocols both recognize 

the carbon neutrality of biomass . Similarly, the European Union ("EU") directive on 

carbon trading specifies "Biomass is considered as C02-neutral ." EU guidelines for the 

monitoring and reporting of greenhouse gas emissions, Annex I, 4 .2 .2 .1 .6, available at 

httpalinni pacinst orglinnilciimate ^hangeiEUGuidelinesGHGJan2004 .pdf. 

Biomass CO_ neutrality has also been the foundation of American policy . The 

American Clean Energy and Security Act of 2009 ("ACESA' ), passed by the House of 

Representatives on June 26. 2009 would exclude certain biomass carbon dioxide from 

the cap See ACESA § 722(b) see also id at § 700(41) . And biomass has been 

explicitly exempted by agency actions as well . EPA's recently promulgated Mandatory 

GHG Reporting Rule uses an expansive definition of biomass and does not include 

biogenic CO2 in its reporting threshold . Similarly, the Department of Energy's (DOE's) 

' Avaiiat=le at USEPA #430-R-08-005, 

nttp 'iw-w ar,a ecvl, iimatechang eiemissionslusa4rnventorV.html. 
Voluntary Reporting of Greenhouse Gases Program, authorized by Section 1605(b) of 

the Energy Policy Act of 1992, provides for exclusion of combustion of biomass fuels 

See DOE, Technical Guidelines : Voluntary Reporting of Greenhouse Gases (1fi05(b)) 

Program at 77 ("Reporters that operate vehicles using pure biofuels within their entity 

should not add the carbon dioxide emissions from those fuels to their inventory of mobile 

source emissions because such emissions are considered biogenic and the recycling of 

the carbon is not credited elsewhere .") . 

Thus, a strong consensus exists that treating combustion of biomass as carbon 

neutral is scientifically sound, and EPA's actions and policies support that consensus_ 

Any alternative policy conclusion would have extremely negative consequences on the 

ability of forests to mitigate the nation's overall carbon footprint It also would negatively 

impact the ability of industry and commercial . institutional and government entities to 

invest in projects that will benefit the environment and the climate . An alternative 

conclusion would remove one of the strongest incentives for production of low 

greenhouse gas lifecycle biofuels . Without this incentive, stakeholders such as NAFO's 

members could find it harder to maintain their forest stock for greenhouse gas reducing 

purposes . Given the massive potential of America's forests to play a positive role in 

climate change efforts, this would be an unfortunate consequence . 

B . EPA's Proposed Tailoring Rule Correctly Provides That Biogenic 

Emissions Are Excluded . 

Thankfully . EPA appears to have understood the danger of sweeping emissions 

from combustion of biomass into its PSD permitting program . Under EPA's proposed 

methodology for the Tailoring Rule . such emissions would be excluded from triggering or 

requiring a PSD permit . 

The Part 51 rule language EPA proposed in the Tailoring Rule Makes PSD 

applicability turn on whether a source emits, or has the potential to emit, at least 25 .000 

tpy C02e of greenhouse gases, as defined under paragraph (b)(58) of this section ." 74 

Fed . Reg . at 55351 . Paragraph (b)(58) reads 

(b)(58) Carbon dioxide equivalent, or C02e, means a 

metric used to compare the emissions from various 

greenhouse gases based upon their global warming 

potential (GWP) . The C02e for a gas is determined by 

multiplying the mass of the gas by the associated GWP . 

The applicable GWPs and guidance on how to calculate a 

source's GHG emissions in tpy C02e can be found in 

EPA's "Inventory of U S . Greenhouse Gas Emissions and 

Sinks," which is updated annually under existing 

commitment under the United Nations Framework 

Convention on Climate Change (UNFCCC) . 

Id. (emphasis added) . Other relevant PSD threshold language in the Tailoring Rule, as 

well as the Title V proposed language, also base carbon dioxide equivalent calculation 

on EPA's "Inventory of U S . Greenhouse Gas Emissions and Sinks ." Id at 55352, 

55361 . Thus, under the Tailoring Rule, all carbon dioxide equivalent calculations turn 

upon the guidance in that document . 
In turn, EPA's Inventory of U .S Greenhouse Gas Emissions and Sinks excludes 

emissions from "combustion of biomass and biomass-based fuels ." EPA, Inventory of 

U .S . Greenhouse Gas Emissions and Sinks: 1990-1997 at Energy 3-1-3-2, available at 

http Owwvr epa govlclimatechanRe/emissionsldownloads09lGHG2007entire report508 pdf . EPA elaborates: 

Carbon dioxide emissions from these activities . are not 

included in national emissions totals because biomass 

fuels are of biogenic origin . It is assumed that the C 

released during the consumption of biomass is recycled as 

U S . forests and crops regenerate, causing no net addition 

of C02 to the atmosphere . 

1d. Later in the same document, EPA specifically applied this reasoning to wood 

biomass: 

The combustion of biomass fuels such as wood, charcoal, 

and wood waste and biomass-based fuels such as ethanol 

from corn and woody crops generates C02 However, in 

the long run the C02 emitted from biomass consumption 

does not increase atmospheric C02 concentrations 

assuming that the biogenic C emitted is offset by the 

uptake of C02 that results from the growth of new 

biomass . As a resuit . C02 emissions from biomass 

combustion have been estimated separately from fossil 

fuel-based emissions and are not included in the U S 

totals . 

Id. at Energy 3-59 . 

Consequently, EPA's proposed Tailoring Rule would exclude emissions from 

combustion of biomass fuels.' This is wise policy and correct science And EPA has 

long standing, unquestioned authority, and appropriate discretion to calculate 

greenhouse gas emissions in this manner-it has been doing so for years in its 

Inventory of U .S . Greenhouse Gas Emissions and Sinks . Indeed, any shift from this 

policy would be both unwise, and reverse settled agency policy . 

C . Given The Serious Adverse Consequences That Would Follow From 

Regulating GHGs Under EPA's PSD Program, EPA Should Make It More 

Exp licit That Bioqenic Emissicns Are Excluded 

As noted, treating combustion of biofuels similar to combustion of fossil fuels 

would have serious negative consequences It would deal a major setback to efforts to 

develop lower greenhouse gas lifecycle biofuels, such as those being pursued by 

NAFO's members . And it could hinder efforts to enlist America's forests in addressing 

climate change, by undercutting incentives to maintain those forests for greenhouse gas 

reducing purposes . Consequently, even though NAFO views the Tailoring Rule as 

' This exclusion is very similar to EPA's longstanding exclusion of certain volatile organic 

. compounds from the otherwise appl:cable statutory definition . 40 C F R § 51 100(s) 
legally exempting combustion of biofuels, it respectfully requests EPA make this 

conclusion more prominent in the final Rule 

We urge EPA to explain in the preamble to its final rule the widespread 

consensus and consistent agency practice that dictate exclusion of combustion of 

biofuels from the PSD and Title V thresholds and from the PSD significant emission rate. 

In addition, the exclusion should be explicit in the regulatory text itself . Not only would 

this constitute good regulatory practice by making plain the consequences of the 

agency's rule, it would also head off possible legal battles that could follow if groups 

opposed to biofuels challenged the exemption for biofuels . Removing this litigation risk 

would benefit the agency and all stakeholders by increasing regulatory certainty And it 

would allow forest owners to pursue carbon fixing activities . secure in the knowledge that 

biofuels will not be treated inconsistent with the sound science and strong policy 

recognizing the carbon neutrality of combustion of such biofuels 

II . ALTHOUGH RESPONSIBLY MANAGED FORESTS PROVIDE 

OPPORTUNITIES TO REALIZE GHG REDUCTIONS, EPA LACKS AUTHORITY 

TO REGULATE THE FORESTRY SECTOR AS A STATIONARY SOURCE 

UNDER THE CLEAN AIR ACT. 

As EPA continues to embark on a comprehensive regime for addressing 

greenhouse gases under the Clean Air Act, NAFO respectfully takes this opportunity to 

reinforce its strongly held views that responsibly managed forests have a significant role 

in mitigating GHG levels, and NAFO and its members look forward to a collaborative 

effort with EPA to utilize these forests to address climate change. At the same time. 

efforts to utilize and accommodate the advantages of carbon sequestration that forests 

provide must be voluntary and not force the forestry or the forest management sector to 

be regulated under the CAA In particular, NAFO does not believe EPA can, nor should, 

impose mandatory regulations on forests, or treat them as stationary sources under the 

CAA . While responsibly managed private forests can play their part in bringing solutions 

to the nation's climate change challenges it is important at the outset that EPA 

recoqnize the distinct nature of forests, which function as natural carbon sinks, and 

differer~tiate them from the stationary sources subject to CAA regulation 

In general, PSD and Title V permitting reqiirements apply to "major stationary 

sources . 42 U .S .C §§ 7479(1), 7602(j) . 7661(2) . Major stationary source,' in turn, is 

defined to include "any stationary facility or source of air pollutants which directly emits 

or has the potential to emit" a specified quantity of a pollutant . Id. Forests cannot be 

major stationary sources." No forest meets the description of a "facility ." Forests were 

not regarded by Congress as sources of pollutants . Congress never intended the Clean 

Air Act's stationary source provisions to go beyond industrial or similar discrete pollution 

sources . Encompassing the forestry sector into a regulatory scheme designed for 

structures, facilities, and installations operated by industrial, commercial, or municipal 

entities is impractical and would not be an effective way of using forests to achieve GHG 

reductions.' Similarly, the statute's focus on "construction," id at § 7475(a), is another 

' The legislative history of the Clean Air Act further affirms that CAA regulat ;on of forest 

management practices was never intended by Congress. The law was directed at automobiles 

and industrial sources of traditional air pollutants, such as soot and smog See e g. . 116 Cong 

Rec . H 19 212 (1970) ; The most dramatic evidence of air pollution is always to be found in dirty 

smekestacks in factories belching smoke across populated communities . 80 percent of the 
example of how CAA regulation is not directed at the forestry sector While this term is 

commonly applied to the building or renovation of industrial facilities, it is completely 

foreign to forest management practices 

Further, the regulation of forest management practices does not comport with the 

Clean Air Act's stated goals for stationary sources, which are clearly aimed at reducing 

industrial source emissions through evolving pollution control technologies while 

minimizing economic harm Each of these goals is discussed throughout the Clean Air 

Act's legislative history .` None of these goals, or the methods enacted to achieve these 

goals, applies to the forestry sector . 

The CAA definition of "stationary source" was developed in the context of the 

New Source Performance Standards program, 42 U S .C. § 7411, which requires the 

EPA Administrator to promulgate standards of performance applicable to designated 

categories of newly constructed stationary sources . Id. § 7411(b) . EPA promulgated the 

original list of designated sources in 1971 5 The Administrator may add new source 

categories to this list upon an endangerment finding . The statutory definitions show that 

regulation of the forestry sector is incompatible with the New Source Performance 

Standard (NSPS) . 6 

First, Congress intended the NSPS to create uniform pollution control standards 

to prevent industry from fleeing States with stringent pollution control laws to those with 

less regulation l This uniformity of pollution controls triggered whenever an older plant 

makes any modification, was also crafted to prevent competitive imbalances between 

new plants and existing plants .' This legislative nistory makes clear that Congress 

targeted industrial sources of pollution . Forests are not subject to pollution control 

poisons in our air come right out of the automobile exhaust pipe.') (statement of Rep Van 

Deerlin) 

° See, e.g ., H Rep . No. 95-294 at 184-86 (1977) 

' List of Categories of Stationary Sources 36 Fed Reg . 5931 (Mar 31, 1971) 

° See, e.g., Caminetti v. United States, 242 U.S . 470 485-86 (1917) ('Statutory words are 

uniformly presumed . . to be used in their ordinary and usual sense, and with the meaning 

commonly attributed to thenn.' ) . 

' See id . at 184 (uniform standards "avoid favoring some areas of the country over others with 

respect to new sources") ; H. Rep_ No. 91-1146 at 3 (1970) ("The promulgation of Federal 

emission standards for new sources ._ will preclude efforts on the part of States to compete with 

each other in trying to attract new plants and facilities without assuring adequate control of extrahazardous or large-scale emissions therefrom .') 116 Cong . Rec S 32 902 (Sept 21, 1970) 

istatement of Sen Muskie) ('Those areas which have levels of air quality which are better than 

the national standards should not find their air quality degraded by the construction of new 

sources There should be no 'shopping around' for open sites ."), 116 Cong Rec. H 19 218 (June 

10, 1970) (Statement of Rep Vanik) ("A steel mill operating anywhere in Ohio or in tl^e Nation, 

should be required to make the same kind of effo^ to contro: the pollution emission of an oxygen 

steel furnace If we would insist on uniform approaches for pollution control of this industry -

wherever the plants are located - :he competitive benefits of a dirty plant would be eliminated . A 

steel plant in Youngstown . Massilon, or M ;ddletown would have to make the same effort to control 

pollution as a plant in Cleveland There would be no profit in pollution_ ) 

See. e g., 116 Cong Rec. H 19,212 (1970) (-MR ECKHART Therefore it would appear to me 

that for instance, an old steel plant which altered its production in a particular unit or operation 

even though that unit was an o!d unit, would be controlled just as its competitor, a new steel plant, 

would be controlled . where new equipment plus new sources of emission occur? MR 

STAGGERS That is correct.') 
standards as they are not an air pollution emission source . Further, forests exist where 

conditions support planting or growing forests-a forest owner cannot practicably move 

their forest lands to another state with more lenient regulation . And the notion that a 

'new" forest could be economically disadvantaged through regulation when compared to 

"existing" forests is inapplicable . 

Second, the NSPS was structured to promote long-term economic growth by 

allowing the continued development of industrial hubs "If each large new pollution 

source were required to use best practicable control technology, then more new sources 

could locate in a given area . This in turn would permit more jobs, more production . and 

greater possibilities for long-term economic growth . ."s Again, applying Congress' goals 

for the NSPS to forest management practices reaches an irrational result Although 

privately owned forests are economically productive and provide jobs they are not 

capable of being consolidated into dense areas the way industrial facilities often locate in 

and around major urban economic centers 

Third, the NSPS requires new industrial facilities to install the required control 

technologies at the time of construction, which "will plainly be less costly then requiring 

retrofit when pollution ceilings are reached ."" Forests of course, do not have to install 

any pollution controls and will never have to retrofit with new technologies whenever 

EPA lowers attainment levels . The NSPS goal of saving money by avoiding retrofit 

technologies makes no sense when applied to the forest sector. 

Fourth, the use and development of the best control technologies allow stationary 

sources to burn higher sulfur fuels, preventing an over-reliance on low-sulfur coal, lowsulfur fuel oil and natural gas ." Obviously this goal of the NSPS has no application to 

forests as they are not industrial fuel-burning emission sources . 

Fifth . the NSPS was intended to create incentives for the development of new 

pollution control technologies.` Again, this goal has no applicability to forests ." 

5 H. Rep No. 95-294, at 184-85 (1977) 

"!d at 185. See also H Rep No 91-1146, at 16 (1970) ("The overriding purpose of this section 

[NSPS] would be to prevent new air pollution prcblems, and toward trnat end, maximum feas bie 

control of new sources at the time of their construction is seen by the committee as the most 

effective and, in the long run the least expensive approach .`) . 

" H. Rep No 95-294 at 186 (1977) 

'2 See id. , H . Rep No 91-1146 at 17 (1970) ('Industrial firms would be required to increase 

efforts to insure that new plants and equipment perform in accordance with the promises and 

commitments made by plant designers and equipment builders New-source standards would 

thus provide maximum incentives to expand technology to insure adequate margins of safety ") 

"The legislative history is replete with references to industrial pollution sources See, e g 116 

Cong Rec . S-, 91 Cong . Senate Debates 1970 32900, 32918 (1970) ( This provision requires 

that new sources that is, the industry plants, be certified by the Secretary before they begin 

operation . to insure they will meet the performance standards ._ ") (Statement of Sen . Cooper) ; 

116 Cong Rec . H 91 Cong . House Debates 1970 19200, 19218 (1970) ('HEW could 

establish uniform pollution control standards for the chemical, oil refining foundnes, food 

processing. and cement-making industry and other industries . . . .) (Statement of Rep. Vanik) ; 

Bills to Amend the Clean Air Act Hearing Before the Subcomm. on Public Health and Welfare of 

the H. Comm on Interstate and Foreign Commerce, 91st Cong . House hearings 171, 281 (1970) 

(Statement of Robert H Finch, Sec'y Dep't of Health Education and Welfare) ('In the years 

ahead, however, marry potentially significant new stationary sources of air pollution will come mto 
Congress never planned for the treatment of forests as stationary sources of 

pollution . Indeed, in 38 years of developing regulations, EPA has never sought to 

regulate forest practices under the CAA, indicating a consistent interpretation from the 

outset that the CAA does not govern forests . 

Having made the point that the CAA never was intended nor could be 

implemented to regulate forests, NAFO looks forward to working collaboratively with 

EPA to develop solutions that contribute in a real and verifiable manner to reduce the 

nation's GHG contributions . Responsible forest management provides a key opportunity 

to substantially reduce fossil-fuel based GHG emissions between now and 2030 . There 

are alternative means for EPA to work with forests owners, other government agencies, 

and other interested stakeholders to mutually develop strong voluntary programs to 

encourage forest management techniques aimed at reducing GHGs. EPA has a 

demonstrated history of success in voluntary programs such as Climate Partners and 

EnergyStar . NAFO looks forward to working jointly with the EPA, DOE, USDA, and 

interested stakeholders to develop market-based incentives to encourage the use of 

responsible forest management to address climate change . 

III . NAFO AND ITS MEMBERS BRING CRITICAL EXPERTISE TOWARD HELPING 

REGULATORS AND LAWMAKERS PROMOTE RESPONSIBLY MANAGED 

'v%~~ORKING FORESTS TO ADDRESS GLOBAL CLIMATE CHANGE 

Finally, NAFO believes that the federal government has a unique opportunity to 

build upon current efforts and develop a GHG program that incorporates the benefits of 

what private forests can accomplish in this area . NAFO's members manage more than 

74 million acres of private forest lands in the United States We do so with forest 

management practices, state-based best management practices, state forestry 

regulations, and standards that ensure we renew forests that have been harvested and 

protect ecosystem values . We are able to maintain this important land base due to the 

economic value of harvested forest products Protecting the ability to continue 

generating economic value from these forests will also enable their continued 

contribution to reducing GHG levels . This includes encouraging the development of new 

products, such as cellulosic biofuels, that will be needed in a low carbon economy . 

With members in all regions of the country working with numerous and diverse 

forests and the production of harvested forest products, NAFO is uniquely equipped to 

help regulators and lawmakers develop approaches that recognize the benefits of 

effective, economical forest management to reduce GHG emissions . As the EPA and 

other federal agencies work to reduce GHG emissions in the United States, they should 

consider opportunities to recognize all sources of potential GHG reductions Taking full 

advantage of those sources can best achieve our environmental goals without 

unnecessarily burdening the United States economy . 

being - to meet growing demands for electric power, manufactured goods . and other necessities 

and amenities of modem life Large stationary sources . such as e~ectric generating plants iron 

and steel mills, and petroleum refineries, cement plants, et cetera, often have adverse effects on 

air quality over broad geographic areas.') . The drafters of the NSPS vlewed forests as casualties 

of air pollution not causes of air pollution . See e cj Vanik at 19217 ("in addition to causing 

disease and death, air pollution cuts crop producticn destroys trees, and is estimated to cost the 

economy $30 billion annuaily The type of darnage that can be done is well illustrated by the U S 

Forest Service estimate that 1 . 3 million trees in the San Bernadino National Forest will die in the 

next 5 years because of smog on the freeways ") 

10 
Private forest owners have a long history of working with the federal government 

to create workable solutions for a variety of environmental issues, through regulatory 

and voluntary programs . For example, Oregon landowners instituted voluntary 

measures under the umbrella of The Oregon Plan for Salmon that have achieved 

significant improvements in salmon habitat on private lands In the South, the forest 

industry helped begin the Louisiana Black Bear Conservation Initiative, a long-term, 

broad-based coalition with the mission of promoting the restoration of the Louisiana 

black bear (an endangered species) in its historical range through education, research, 

and habitat management These are several of many instances where public-private 

partnerships have produced desirable, mutually beneficial outcomes. 

Climate change solutions present policy, technical, and economic challenges . 

We remain optimistic however, of the critical role that private forests can play in 

developing effective climate change solutions . The nation can best resolve these 

challenges by bringing key stakeholders together to develop solutions collaboratively . 

NAFO and its members clearly have the requisite policy, technical . and economic 

expertise to bring to the table. We are ready and willing to do all we can in this effort 

Thank you for this opportunity to provide our views at this critical time in 

considering the first GHG controls on stationary sources . We look forward to further 

discussion with EPA and other decision makers. Please feel free to contact me at 202-

367-1163 to discuss opportunities for NAFO to play its role in developing climate change 

solutions. 

Sincerely, 

David P Tenny 

President and Chief Executive Officer 
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