IN RE SIERRA PACIFIC INDUSTRIES PSD Appeal No. 02-13 ORDER DISMISSING PETITION FOR REVIEW Decided January 7, 2003 Syllabus Stanley W. Cleverly ("Petitioner") appeals an October 17, 2002 decision of the Washington Department of Ecology (“WDOE”) to issue a Prevention of Significant Deterioration ("PSD") permit to Sierra Pacific Industries (“SPI”). The permit authorizes installation and operation of a wood-waste boiler and a steam-driven electricity generating turbine at SPI's Aberdeen, Washington facility. During the public comment period preceding issuance of the permit, written comments objecting to the permit were submitted by David Fletcher and his consultant, John Williams. These comments were withdrawn in writing prior to the end of the public comment period. WDOE did not respond to the withdrawn Fletcher and Williams comments. Petitioner argues that WDOE committed error because it did not require Best Available Control Technology ("BACT") for emissions of NOx, CO, and PM10. Petitioner also argues that WDOE exercised discretion warranting review when it failed to address the withdrawn comments. In the alternative, Petitioner argues that WDOE should have considered the withdrawn comments because Petitioner incorporated them by reference into his own oral comments at the public hearing on the draft permit. WDOE argues that the issues on appeal were not preserved for review and that WDOE did not abuse its discretion by not responding to the comments submitted, but later withdrawn, by Fletcher and Williams. Held: Petitioner failed to preserve the BACT issues he seeks to raise on appeal. Petitioner failed to incorporate by reference the BACT issues that were part of the withdrawn comments. Petitioner did not make any affirmative statement at the public hearing that he was incorporating the comments by reference; also, he indicated that he understood the comments had been withdrawn and conceded that he was not knowledgeable regarding the substance of those comments. Petitioner's own oral comments during the public hearing lacked sufficient specificity to preserve the issues for appeal. Petitioner has not demonstrated that WDOE exercised discretion warranting Board review when WDOE did not respond to the withdrawn comments. VOLUME 11 Before Environmental Appeals Judges Scott C. Fulton, Ronald L. McCallum, and Edward E. Reich. Opinion of the Board by Judge Reich: Before the Environmental Appeals Board ("EAB" or "Board") is a petition seeking review of certain conditions of Prevention of Significant Deterioration ("PSD") Permit No. PSD-02-02 (the "Permit") issued by the Washington Department of Ecology ("WDOE").1 The Permit was issued on October 17, 2002, to Sierra Pacific Industries (“SPI") for installation and operation of a wood-waste boiler and a steam-driven electricity generating turbine at SPI's Aberdeen, Washington facility. The petition for review ("Petition") was filed by Stanley W. Cleverly ("Petitioner"), a resident of Aberdeen who resides within 1000 feet of the proposed facility. As explained below, the Petition is dismissed because the issues for which the Petitioner seeks review were not preserved for appeal, and Petitioner has not shown an abuse of discretion by the permitting authority that warrants Board review. I. BACKGROUND A. Factual and Procedural Background SPI operates a lumber mill located 2.5 kilometers east of Aberdeen, Washington. Pet. Ex. A (Permit No. PSD-02-02) at 1. On July 22, 2002, WDOE issued a draft PSD permit for a wood-waste boiler at the SPI facility. In the draft permit, WDOE preliminarily determined that the Best Available Control Technology ("BACT")2 for the boiler would be: WDOE administers the PSD program in Washington pursuant to a delegation of authority from U.S. Environmental Protection Agency ("EPA") Region X (the "Region"). See Letter from B. McCallister, Dir. Office of Air Quality, to M. Burg, Mgr. Air Quality Program (Feb. 27, 2002), viewable on the World Wide Web, at: http://www.ecy.wa.gov/programs/air/psd/PSD_EPA_Letter.pdf. Fed. Reg. (2002)(publication pending). Because WDOE acts as EPA's delegate in implementing the federal PSD program within the State of Washington, PSD permits issued by WDOE are considered EPA-issued permits for purposes of federal law, and are subject to review by the Board pursuant to 40 C.F.R. § 124.19. See In re Kawaihae Cogeneration Project, 7 E.A.D. 107, 109 n.1 (EAB 1997); In re Commonwealth Chesapeake Corp., 6 E.A.D. 764, 765 n.1 (EAB 1997); In re W. Suburban Recycling & Energy Ctr., L.P., 6 E.A.D. 692, 695 n.4 (EAB 1996). 2 Facilities subject to PSD permitting requirements are required to meet emissions limitations that satisfy the definition of BACT. BACT is defined in the regulations as follows: [BACT] means an emissions limitation (including a visible emission For NO, emissions: Use of a spreader stoker boiler design; Selective noncatalytic reduction ("SNCR"); and A short term (24 hour average) limit of 0.15 pounds NOx For CO emissions: Good combustion practice, and An emission limit of 0.35 pounds CO per million British For PM10 emissions: Use of an dry electrostatic precipitator (ESP), and An Brady Aff., Ex. A at 11, 12 and 14 (Fact Sheet for Draft Permit No. PSD-02-02). WDOE's BACT determination was unchanged in the final permit. Pet. Ex. A at 2-3. During the 30-day comment period following issuance of the draft permit, a public hearing was requested by David Fletcher, Stanley and Beverly Cleverly, and an organization named Concerned Neighbors. Pet. Ex. F (Response Summary to Comments During the Public Review Period for PSD 02-02 (undated)) at 1. Because a public hearing was requested, the public comment period was automat (continued) ministrator, on a case-by-case basis, taking into account energy, environ- 40 C.F.R. § 52.21(b)(12); CAA § 169(3), 42 U.S.C. § 7479(3) (BACT defined). VOLUME 1 ically extended to October 9, 2002, the date of the hearing, by virtue of the operation of 40 C.F.R. § 124.12(c). Id. Written comments were submitted to WDOE during the public comment period by Mr. Fletcher, Mr. Williams (a consultant to Mr. Fletcher), Mr. Mike Wilson (Mayor of Aberdeen), and Mr. Bob Beerbower (Chair of Grays Harbor County Commissioners). Id. Oral comments were presented at the public hearing by Petitioner and Mr. Bill Hagara. Id. at 1-2. Mr. Fletcher's written comments were submitted to WDOE on August 14, 2002, and Mr. Williams' comments were submitted on October 8, 2002.3 However both sets of comments were also withdrawn in writing before the close of the public comment period and, in fact, before the public hearing. Mr. Fletcher withdrew his comments by letter dated October 8, 2002. See Pet. Ex. C last page. Mr. Williams withdrew his comments by an October 8, 2002 letter. Pet. Ex. D last page. The letters of withdrawal both stated, The undersigned, being fully informed and advised by counsel do hereby warrant and stipulate: a. All comments and materials made by me or on my be- c. The undersigned agree they have no objection to the Pet. Exs. C & D last page (emphasis added). On October 9, 2002, Petitioner presented oral comments on the draft permit related to BACT. He stated, after outlining the BACT process, "I was hoping to ask is that you guys will review their procedures and our WAC codes and make sure they are meeting the best that we can have to deal with." Moody Aff., Ex. A at 2. Petitioner also stated, after asserting that construction had begun without the requisite permits: I was hoping that another resident that lived out there had 3 Both sets of comments contained numerous challenges to the BACT analysis undertaken in preparation of the draft permit. See Pet. Ex. C at 3-4 (summary of BACT arguments); Pet. Ex. D at 2-9. 4 The record before us reflects that Mr. Williams submitted and withdrew his comments on the same date - October 8, 2002. The precise timing and circumstances surrounding this seemingly unusual activity are not reflected in the record. knows these things that we were hoping would enlighten Id. Upon inquiry by the hearing board regarding the unnamed resident and his expert, Petitioner admitted, I don't know who he was, we heard, we talked, we knew about, but we did not know who he was. I fully expected to see him here today and when they told me his comments and experts had been pulled then, we figured *** they came to an agreement * * * Id. at 4. On October 17, 2002, WDOE issued the Permit for the proposed wood-waste boiler. On November 15, 2002, Petitioner filed a timely petition for review ("Petition") of the Permit with the Board. WDOE filed a response ("Response") seeking summary disposition on December 6, 2002. Petitioner filed a timely reply ("Reply") to WDOE's response on December 16, 2002. B. Issues Raised in the Petition Petitioner argues that WDOE committed error because it did not require BACT for emissions of NOx, CO, and PM10. Petition at 5. Petitioner also argues that WDOE exercised discretion warranting review when it failed to address the withdrawn comments submitted by Mr. Fletcher and Mr. Williams ("withdrawn comments"). Id. at 5-6. In the alternative, Petitioner argues that WDOE should have considered the Fletcher and Williams comments because Petitioner's "verbal comments at the public hearing, *** supported the concerns they submitted and [were] meant *** to be taken as [his] own." Id. at 6. WDOE argues that the issues on appeal were not preserved for review and that WDOE did not abuse any discretion by not responding to the withdrawn comments. For the reasons discussed below, the Petition is dismissed. A. Standard of Review II. DISCUSSION The Board's review of PSD permitting decisions is governed by 40 C.F.R. part 124, which "provides the yardstick against which the Board must measure" petitions for review of PSD and other permit decisions. In re Commonwealth |