ANTI-BIOMASS CAMPAIGN CALL RECORDING & NOTES: “Court Rejects EPA Rule that Deferred Carbon Standards for Biomass Industry" (August 2013)

Anti-Biomass Incineration Campaign - National Conference Call Notes

Thursday, August 1, 2013 at 3pm EST

Topic: “Court Rejects EPA Rule that Deferred Carbon Standards for Biomass Industry" - What does the recent U.S. Court of Appeals decision (Center for Biological Diversity v. EPA) mean for the future of industrial-scale biomass incineration in the U.S.?

Guest Speaker: Kevin Bundy, Senior Attorney, Center for Biological Diversity (CBD)


Court Rejects EPA Rule that Deferred Carbon Standards for Biomass Industry - August 2013

Facilitator: Josh Schlossberg

Notes: Samantha Chirillo

On Call: Kevin Bundy, Center for Biological Diversity (CA); Josh Schlossberg, Energy Justice Network (VT); Rachel Smolker, Biofuelwatch (VT); James Travers, Citizens Environmental Coalition (NY); Carl Ross, Save Americas Forests (DC); Mike Ewall, Energy Justice Network (PA); Samantha Chirillo, Energy Justice Network (OR); Chris Zinda, Save Our Rural Oregon (OR); Tim Platt (OR); Kevin Glenn (CA); Scott Herscie?(NC?); Dian Deevey (FL); Paula Stahmer (FL); Bob Rhodi (TX); Ray Washington (FL); David Lutter (FL); Karen Orr, Energy Justice Network (FL); Sami Yassa, Natural Resources Defense Council (CA); Therese Vick, Blue Ridge Environmental Defense League (NC); Gretchen Brewer (WA); Mary Booth (MA); Ernie Reed, Heartwood (VA); Elaine Bailey (WA); Judith Mann, Friends of the Earth; Nick Lapis, Californians Against Waste (CA); Nick Klatnick?; 


Josh Schlossberg (Energy Justice Network, VT) introduces topic and guest speaker. This call was recorded. Josh asks whether there are any biomass industry folks on the call. No one responds affirmatively.

Kevin Bundy: I typically litigate on the Clean Air Act. The court ruling on the EPA was a big deal

Kevin: The pollutant emissions limits imposed is based on the best available control technology (BACT), not the best pollution control. Title V is another permitting program which gathers emissions and other limits together in one place. There are efforts by progressive states to regulated greenhouse gases (GHGs) under the Clean Air Act (CAA). The endangerment finding under Mass v. EPA was a major rule in 2009-2011 that cars and light trucks are endangering. Then the vehicle rule about emissions came about. Then attention was focused on stationary sources.

The tailoring rule made sure that the biggest sources had to go through the permitting process. The threshold was originally set low, and the EPA adjusted it upward, so that only the biggest offenders were limited. The tailoring rule took effect in 2 steps, the second in July 2011. Any facility newer than this and emitting more than 100,000 tons CO2 per year or any preexisting facility increasing CO2 emissions by more than 75,000 tons would go through permitting under the prevention of significant deterioration (PSD) program. Many biomass facilities have been able to stay out of the PSD program, but even 7-8 MW facilities would easily exceed the 100,000 tons CO2 limit under tailoring rule.

Burning biomass produces a lot of CO2 per unit of energy produced. Federal programs are more stringent than state programs. An important thing is that, even if CO2 emissions were the only thing that bring the facility into program, must implement review/controls for other pollutants emitted too. industry freaked out, lobbied hard for the EPA to reconsider. The EPA caved under pressure and got the exemption rule just defeated in court: a 'deferral rule' it's called, but it is a permanent exemption for facilities permitted in those 3 years, 2009-2011. It exempted anything not a fossil fuel from the 100,000 threshold or the BACT. EPA's rationale was that it had to regulate CO2 like other emissions, but it invoked excuse doctrines rather than making the case that the CAA should exempt CO2.

The EPA claimed that it was difficult for the EPA to figure out net emissions, since lifecycle emissions are complicated with biomass. Also, the rule was too broad and would inadvertently crack down on less problematic facilities. Organizations challenged the exemption, filed April 2011, including CBD of Maine. There was a reconsideration in 2011, then the EPA rule was finalized in 2011, and groups then filed challenges to final exemption rule (4 challenges), collaborating on the briefs. The EPA was not even trying to justify it. The decision came on april 2012, then in july went directly to the DC Circuit Court of Appeals: a panel of 3 judges, with 3 separate opinions.

The lead opinion was joined by 2 others, and there was a dissenting opinion. The court did not decide statutory authority, but rather let the door open for the EPA to craft excuses but put sideboards on. One of the conservative judges joined the majority opinion but also wrote his own, saying that there is no basis for distinguishing CO2 from other pollutants. The other conservative, dissenting, said the EPA is still figuring out the science. It's important to note the effect of the decision - issuance of the mandate was delayed 45 days, the DC Circuit Court is to rehear the case if anyone seeks rehearing, so the effective date could get pushed out further. If the decision sticks, then new facilities >100,000 tons per year CO2 have to go through permitting and BACT for GHGs and other pollutants. This is better than most state-level rules. The dilemma is - what is the BACT for CO2? EPA says biomass itself is the BACT! More facilities could rely on this bogus rationale. What happens to facilities that do get permits?

There still may be avenues for challenging these. How will the EPA respond? They can no longer keep extending exemption with this recent court ruling. Industry is pressuring them on how they count these emissions. There are some big questions- what happens to the tailoring rule? All 4 rules have been challenged by industry. The DC Circuit Court ruling is now appealed to US Supreme Court, pending. If the Supreme Court takes the case, and tailoring is thrown out, it would nullify our victory. In our favor now is that the science on climate change is front and center. We've got sideboards on GHG emissions regulation and stronger permitting for not just GHGs but other emissions, too.

This helps push message forward. It's too early to know what Supreme Court will do, but the DC Circuit Court ruling is important to upholding GHG regulation. Still needs to be more aggressive than the EPA has been to curb climate change.

Ray Washington (FL) - A facility here was permitted December 30, 2010, under an agreement with the local utility. We're told this facility will not be affected by court ruling.

Kevin - Don't know enough details, can't give legal advice. Until tailoring took effect January 2, 2011, GHGs were not considered regulationable pollutants, so there was a rush to get permit applications in before 2010. That facility probably would not have to control for GHGs, and ruling would not have much bearing. If the facility modified its permit later such to increase more than 75,000 tons/year, then this would trigger evaluation and control under this ruling. Since permitted before 2011, the ruling does not have much bearing on vaiidity of those permits unless the facility proposed a modification of capacity (4-5 MW capacity) or increase in GHG emissions. The ruling applies to not just new, but also modification by existing facilities if they start to exceed limits.

Sami Yassa (National Resource Defense Council) - The EPA gave a lot of excuses, rationales for exempting. We wanted to get an idea of the court's opinion on science. Is 1 pound biogenic CO2 the same as coal-generated CO2 and therefore no exemption, or did they say different types of biomass have different degrees of carbon impact, so the same exemption would be arbitrary and capricious?

Kevin - The court did say that CO2 is CO2. The majority opinion stopped short of saying there's no basis in the to distinguish between these. The dissenting did say so, but the majority did not. The majority said the problem with exemption is that it is overly broad, as the EPA did not really tailor to different sources based on net or life-cycle emissions. The EPA did not explain how they would regulate, but rather exempted sources all at once, saying that some sources had minimal impact, would not make sense for them to go through permitting, but in court they said that this was only an argument to invoke permanent exemption. Landfill, wastewater facilities raised questions about diminimus effect. But they've had a harder time to make that argument in forest context with woody biomass. The EPA has a time window now to make distinctions, but whether they can justify it under the CAA is left open.

Sami - Did court have an opinion on science, to distinguish diminimus from not?

Kevin - Although the court was strongly influenced by the science, recognizing that the net emissions may differ by feedstock, they did not get into how to count net CO2. Courts like to leave science details to the agency, do not make scientific judgment. In this case, the court just said EPA didn't have science in their exemption and cannot get away with that. The court did not endorse a scientific perspective.

Jim Travers (NY) - I'm concerned about tires. The EPA has designated tires as fuel, not needing to be permitted. The decision reinforces applying the CAA to biomass.

Kevin - Good point, this is not the only PEA ruling with bearing on biomass. There are also relevant solid waste and hazardous pollutant regulations. Some rules have exemptions. Biomass energy is a very powerful industry, weird how powerful, with timber and paper and influential senators onboard.

Jim - I'm fighting 2 local plants, cement kiln facilities, fighting EPA on delays.

Chris Zinda (OR) - Oregon has heated up recently. The Seneca facility in Eugene, permitted in October 2010, is proposing modification but not even submitted yet, so there's time. Lakeview has a modified permit application underway, originally permitted September 2010. The decision on the Lakeview permit modification is expected in September, too soon to be affected by the court decision. I'm wondering how CO2 and condensible emissions relate. Do CO2 controls control condensible? Condensibles have played a role in the original permitting of these 2 OR facilities. In Lakeview, its 3x more PM2.5 if you include condensible emissions. Can condensible controls control CO2?

Kevin - Don't know. Not much change to combustion needed to reduce CO2. Controls for other pollutants often increase CO2 emitted. If the modification does not increase CO2 by more than 75,000 tons per year, then OR rules instead of federal would apply.

Chris - Senator Ron Wyden is Chair of the Senate Energy and Natural Resources Committee.

Kevin - if you could change his mind, that would be fabulous. he's very influential. In the Western U.S., biomass is wound up tight with fire and thinning. Land and forest and fire fear issues are bound very tightly with biomass industry in the Western U.S., a tough nut to crack. Very emotional. Need to look beyond, challenge this rational, pressure Wyden.

Chris: Robert McClure of Investigate West did a Freedom of Information Act (FOIA) request for correspondence between the OR delegation and the EPA on tailoring, waiting for the info has already delayed him 6 months in coming out with a piece on biomass.

Kevin - I've FOIAed them (?) The agency will delay, string it out. Scott - I'm fighting construction permitted October 2011 of tire burning facilities. They went through the process, submitted BACT, but not for the 20% biomass fraction. Could we ask the EPA to reexamine the non-biomass fraction since biogenic CO2 = nonbiogenIc, which would increase CO2 emissions from 632,000 to 800,000 tons.

Kevin - I don't know specifics, can't advise. Seems good to revisit and find out. If they used BACT for GHGs, then they may already have what a court victory would do. There may not be more to do. Talk to someone who can assess the situation.

Nick Laves? (?) - I'm interested on the impact to composting facilities. Kevin - I'm not familiar with compost facility permits, not sure how that's handled. If facility is large, then might emit enough to exceed limit and pull it into permitting,good size enough to exceed limit, this ruling could pull it into permitting.

Mary Booth (Partnership for Policy Integrity, MA) - If a 7-MW facility burns all carbon, that's 12,500 tons green wood per megawatt per year, that's 87,000 tons tons CO2 per year. If you add methane, the total GHG emissions might exceed the limit but compost is probably not as likely to exceed as wood facility. Kevin - I give credit to the coplaintiff ors, including NRDC.

Mike Ewall (Energy Justice Network, DC) - What is the EPA going to cook up next about biomass. What about trash boilers and cofiring? Would any boiler that switches fuels trigger PSD? How will it impact gas to energy?

Kevin - I have no idea what's next. The door is open for the EPA to do any number of things, including handling diminimus sources. In early exemption, it looked like they were moving toward an overall framework. Then the scientific advisory board reviewed it and said there's not many valid shortcuts, must do credible, laborious accounting. There are different pathways to calculation. So they decided to come out with another broad, blanket exemption, but that has been the EPA way of doing things. Now they are more likely to do something that looks a little more nuanced but exempts industry as much as they can. Before our victory it looked like the coffering facilities, by substituting, were reducing CO2, but actually that's because they weren't counting CO2 emissions from biomass. Now we know that biomass produces more CO2 per unit of energy produced, so coffering facilities might have to go through permitting if they modify to increase by >75,000 tons CO2 per year. Not sure about landfill gas, but the limits might apply to larger facilities.

Dian - I understand that Title V allows review every 5 years to see if the facility is consistent with contemporary regulations.

Kevin - Not sure how this will affect facilities regulated under Title V, but they are reviewed every 5 years. This permit itself does not require compliance in the 5-year interim.

? - They will review a Title V facility if the increase is >75,000 tons CO2 per year.