In re Energy Answers Arecibo, LLC
This matter involves five petitions seeking review of a Clean Air Act Prevention of Significant Deterioration (“PSD”) permit (“Permit”) that the U.S. Environmental Protection Agency (“EPA” or “Agency”) Region 2 (“Region”) issued to Energy Answers Arecibo, LLC (“Energy Answers” or “Permittee”) on June 11, 2013. The Permit authorizes Energy Answers to construct and operate a new resource recovery facility in Arecibo, Puerto Rico. Petitioners raise numerous issues challenging various aspects of the permit decision including the Permit’s scope, the Region’s environmental justice consideration, the Region’s compliance with the public participation requirements of the PSD permitting program, the content of the Administrative Record, and the Region’s substantive consideration of the Permit, including specific Permit conditions.
Held: The Board remands the Permit for the limited purpose of including regulation of biogenic greenhouse gas emissions and does not require the Region to reopen the Permit for public comment. The Board denies the Petitions for Review on all other grounds.
The Board’s most significant holdings are summarized below:
A. Issues concerning the Permit’s scope and the Region’s environmental justice consideration:
• Exclusion of Lead. The Region properly excluded lead emissions from the PSD permitting process because the municipality of Arecibo has been
designated as a nonattainment area for lead, and thus, lead emissions are not subject to the PSD process. The Board also concludes that the questions
Petitioners raised regarding the applicability of the nonattainment New Source Review permitting program to the proposed facility lie outside the Board’s
authority to decide.
• Biogenic Greenhouse Gas Emissions. The Board remands the Permit for the limited purpose of including regulation of biogenic greenhouse gas emissions
consistent with the Region’s proposed revisions in its Motion for Limited Voluntary Remand. Additionally, the Board concludes that the proposed Permit amendments will not result in any change to the control technology selected or the facility’s total CO2 emissions (both biogenic and nonbiogenic), on which the public was given ample opportunity to review and comment. Accordingly, based on the facts of this case, the Board does not require the Region to reopen the Permit for public comments.
• Consideration of Environmental Justice Implications. The Region thoroughly evaluated the Environmental Justice implications of the proposed facility, including the impact of its lead emissions, the neighboring Battery Recycling facility, and alternatives to the proposed project.
B. Issues concerning compliance with the public participation requirements of the PSD permitting program:
• Notice of Draft Permit. The public notices complied with all applicable regulatory requirements and informed the public of the scope of the Permit. The fact that a criteria pollutant will not be regulated by a permit is information that is not required in the public notice of a Draft Permit. Rather, such information is typically found in the Fact Sheet, as was the case here.
• Opportunity to Consider the Draft Permit and to File Permit Appeal. The Region provided the public with ample opportunity to consider the Draft Permit and to file a permit appeal, and the Region exceeded the applicable requirements for public participation under the Clean Air Act, EPA’s implementing regulations, and EPA policy. The public comment period for this permit exceeded the time granted in most permit proceedings: the Region held six public hearings and two availability sessions with simultaneous English and Spanish translations each, and translated relevant permit documents into Spanish.
• Availability of Administrative Record. Permit issuers are not required to post the administrative record of a permit proceeding online; a permit issuer’s obligation is to provide physical access to the administrative record. The Region provided access to the Permit record at its offices in both Puerto Rico and New York. Additionally, no harm or prejudice occurred where the most significant documents forming the basis of the Draft Permit were available online and the Region notified commenters and the general public that the Final Permit decision and the Response to Comments document were available online at the Region’s website.
C. Summary of most significant remaining issues:
• Content of Administrative Record. Information allegedly missing from the record, such as the Region’s rationale for issuing the Draft Permit and
information pertaining to fugitive emissions and health impacts from ash handling, the intake of water for the cooling tower, and ecological risks to species found in nearby forest and wetlands, was available in the administrative record of the Draft Permit. In addition, the Region explained in the administrative record why the Permit does not evaluate fugitive emissions at the ash disposal site, and Petitioner failed to address these explanations.
• Air Quality Analysis. The air quality analysis considered pollutant emissions from nearby sources and existing air quality. Petitioners failed to demonstrate clear error in the Region’s determination that the meteorological data used in the air quality analysis was spatially or temporally representative.
• Challenged Permit Conditions. The Board defers to the Region’s technical judgment on how often a permittee should conduct a combustion demonstration period or perform inspections of roadways and parking areas, and how best to demonstrate compliance with permit requirements.