Partnership for Policy Integrity v. McCarthy

EPA published notice of its final order on the petition in the December 29, 2016 issue of the Federal Register.

The United States Environmental Protection Agency (EPA) granted in part a petition requesting that EPA object to a Title V operating permit issued by the Environmental Protection Division of the Georgia Department of Natural Resources for a biomass-fired power plant. EPA agreed with the petitioner, Partnership for Policy Integrity, that the permit should have included monitoring and recordkeeping requirements to ensure compliance with the requirement that the plant burn clean cellulosic biomass. EPA also concluded that limits on hazardous air pollutant emissions to which the plant operator had agreed were not enforceable as a practical matter. EPA denied, however, the petitioner’s claim that EPA should object to the permit on the basis that the plant was a major source for greenhouse gases and should have gone through Prevention of Significant Deterioration permitting, including a Best Available Control Technology analysis for greenhouse gases; EPA said the claim was not raised with reasonable specificity in comments on the draft permit.

EPA and the Partnership for Policy Integrity (PPI) filed a proposed consent decree in the federal district court for the Middle District of Georgia to resolve PPI’s claims that EPA had failed to perform its nondiscretionary duty to respond to PPI’s petition requesting that the agency object to a Title V permit issued by the Georgia Department of Natural Resources for a biomass-fueled power plant in Lamar County. PPI submitted the petition in May 2015 and filed its lawsuit in January 2016. The organization asked EPA to object to the Title V permit because it would not assure compliance with the Clean Air Act. PPI said that EPA should direct that the facility be required to go through the Prevention of Significant Deterioration permitting process. PPI argued, among other things, that the facility was a major source for greenhouse gases and should undergo a BACT analysis. The consent decree would require EPA to sign a response to PPI’s petition by December 16, 2016.