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The deadline for all questions pertaining to the 2016 Problem is October 26, 2015. You should review the Problem prior to the deadline and email the NELMCC Board at firstname.lastname@example.org with any question(s). Questions will be answered once a week to all team contacts via email through the NELMCC ListServ and will also be posted weekly here. No questions about the Problem will be answered after the deadline.
Q1: Page 2 of the 2016 Problem states that petitioner Sylvanergy takes issue "in particular...with NUARB's determinations that the proposed Forestdale Biomass Facility was subject to PSD review for greenhouse gases and that a Sustainable Forest Plan constituted the [BACT.]" Our question is, does Sylvanergy thus ONLY contest the PSD review and required permit for greenhouse gases, or for both greenhouse gases and the criteria pollutants for which a PSD permit is authorized under the CAA?
A1: Sylvanergy disputes that PSD review and BACT should apply to its facility at all. However, assuming that PSD review does apply, Sylvanergy does not dispute that the permit limits for criteria pollutants adopted by NUARB constitute BACT for these pollutants. Sylvanergy only challenges the BACT determination for greenhouse gases.
Q2: Page 2 of the 2016 Problem states that "the Court has previously determined both petitioners have standing to pursue petitions for review," and nowhere else in the Problem do any parties contest standing of petitioners. So is standing definitively not an issue on appeal then?
Q3: Page 5 of the 2016 Problem, the last sentence of the second paragraph under the heading, "FACTUAL BACKGROUND," states "the facility would emit 350,000 tons per year of greenhouse gas emissions in [CO2E.]" Prior to this sentence the paragraph compares emissions of criteria pollutants at the proposed facility when operating levels of 75% capacity and 96% capacity. What is not clear is whether the above sentence refers to these 350,000 tons per year of GHG's emitted during either the 75% or 96% capacity, or both. We assumed it had to be one or the other level of operating capacity.
A3: You may assume that 350,000 tons per year of greenhouse gas emissions reflects operation at full capacity, not 75% capacity.
Q4: In the context of the PSD permit, does the proposed Sustainable Forest Plan approved by NUARB constitute a "best available control technology" (in theory) because the designated reforestation area is the ONLY area from which Sylvanergy can draw wood for their biomass facility, or because the Forest Plan sets aside an area for forestation as a MITIGATION act, and Sylvanergy can still draw its source of wood for their bio facility from either that area OR presumably any other wooded area?
A4: The record is silent on this issue.
Q5: On page 2 of the problem, is the question whether the court has jurisdiction to review the NAD denial limited to whether the Circuit Court of Appeals has jurisdiction and not whether the EAB properly or improperly determined that it did not have jurisdiction to review the NAD denial?
A5: You may brief and argue both issues to the extent you see issues based on this record.
Q6: What class area is New Union? The EAB order says that Union is in attainment for all NAAQS, but does not say what class (I, II, or III) attainment area it is.
A6: The record is silent on this issue.
Q7: Who approved the final PSD permit before it was reviewed by the Environmental Appeals Board? The EAB order says that the state agency approved the permit, but the Court of Appeals Order says that SOC/Sylvaenergy are appealing a final decision of the USEPA Regional Administrator. Are we to assume that the PSD permit was implicitly approved by the regional administrator though the state agency's approval or was there regional administrator approval of the permit after NUARB approved the final permit?
A7: Please refer to the problem. No further information will be provided.
Q8: Page 5 of the Problem states that the Sylvanergy facility has an electrical generation capacity of 40 MW, and that the facility will house a 500 million Btu/hour EGU combined with wood pellet fuel production. Converting the 40 MW capacity to units representing heat input rate of million Btu/hour yields a number significantly lower than the 500 million Btu/hour heat input rate of the facility. Should we assume the extra heat input/hour is tied to the wood pellet fuel production aspect of the facility as separate and distinct from the electrical generation aspect of the facility?
A8: The record is silent on this issue.
Q9: What is the case number on appeal?
A9: The Court of Appeals for the Twelfth Circuit designates docket numbers to its appeals. Because this appeal involves consolidated petitions, there are two docket numbers: 14‑000123 and 14-000124.
Q10: When (what date) was the Sustainable Forest Plan signed into law in the State of New Union?
A10: Please refer to the record, which will not be supplemented on this issue.
Q11: When (what date) was the Governor's Executive Order 12-005 signed into law in the State of New Union?
A11: You may assume that Executive Order 12-005 was signed into law in the State of New Union prior to September 12, 2013, when NUARB published the draft permit for public comment, and that the Order remains in effect.
Q12: Does the Sustainable Forest Plan BACT require Sylvanergy to draw its wood ONLY from the forest covered by that Plan?
A12: The record is silent on this issue.
Q13: The first inquiry deals with the precise nature of the site plan approval process for the Village of Forestdale. Specifically, was the plan issued by an air pollution agency as part of the SIP?
A13: The record is silent on this issue.
Q14: On R.14, should the regulation read 40 C.F.R. § 124.19(a)(2)-(3), not 40 C.F.R. § 124.19(l)(2)-(3)?
A14: The record will not be supplemented on this issue.
Q15: Did Sylvanergy “file comment on the draft permit or participate in a public hearing on the draft permit?”
A15: You may assume that Sylvanergy commented on the draft permit in a manner sufficient to preserve its arguments for appeal.
Q16: Did the final permit have any changes from the proposed draft permit?
A16: You may assume that the final permit was identical to the draft permit with respect to all issues relevant to the appeal.
Q17: Are we to assume the delegation memorandum was legally valid when the EPA’s delegated rulemaking authority to the state of New Union?
Q18: Is the biomass-fired electricity generating facility an “electric utility steam generating unit”?
A18: The record will not be supplemented on this issue.
Q19: Issue 2(a) states that Granger is supposed to argue that the Sylvanergy facility is NOT a "fossil-fuel fired" source. But on page 6, NUARB is of the opinion that the Sylvanergy facility IS a "fossil-fuel fired" source. So Granger disagrees with NUARB on the fossil fuel issue?
A19: The record will not be supplemented on this issue.
Q20: The Court has asked the parties to brief issue 2(a): “Whether the Sylvanergy facility is a “fossil-fuel fired” source subject to the 100 ton-per-year threshold under section 169(1) of the Clean Air Act, 42 U.S.C. § 7479(1) (2012). (Sylvanergy and Granger argue it is not; SOC argues it is.).” However, nowhere in the record is Sylvanergy’s basis for this claim. Shall we assume that this claim is based on the start-up burners?
A20: You should brief this issue to the extent you think necessary to answer the question presented. Although not explicitly stated in the procedural history given in the EAB opinion, you may assume that Sylvanergy preserved the basis for its claims on the record.
Q21: Was NUARB's denial of Sylvanergy's request for a Non-Applicability Determination published in the Federal Register?
A21: No. You may assume that NUARB provided Sylvanergy with written notification of its applicability determination, and that it also included the relevant applicability determination information in its draft permit, published according to the law of New Union.
Q22: Did NUARB select as BACT for Sylvanergy a numerical limitation based on the Sustainable Forestry Plan (e.g. 70% GHG emissions reduction), or did it specifically require the company to purchase land and manage it for forestry?
A22: The record will not be supplemented on this issue.
Q23: Does the Sustainable Forestry Plan require monoculture forestry, or does Sylvanergy have discretion in its methods of forest management?
A23: The Sustainable Forest Plan is not included in the record on appeal, but you may assume the plan requires only what is discussed in the procedural history as described in the EAB’s opinion.
Q24: Question 2(a) states: "Whether the Sylvanergy facility is a “fossil-fuel fired” source subject to the 100 ton-per-year threshold under section 169(1) of the Clean Air Act, 42 U.S.C. § 7479(1) (2012)." (Sylvanergy and Granger argue it is not; SOC argues it is.) However, elsewhere in the problem, it is stated: NUARB’s denial of the requested NAD reasoned that since the facility would include ULSD start-up burners, it was a fossil-fuel fired facility despite its primary reliance on wood biomass for energy production. Are we to understand, then, that the EPA and the NUARB have made differing determinations about Sylvanergy’s status as a fossil fuel-fired source?
A24: The record will not be supplemented on this issue.
Q25: The problem specifically states that we may not cite to any decisions or documents dated after September 1, 2015. The EPA just issued the final rule for new EGUs on October 23, but they also published an unofficial version of the rule on August 3, 2015. May we cite to the unofficial version?
A25: You may cite to the unofficial version of the final rule. Note, however, that prior to September 1, 2015, the rule remained unofficial for the purposes of compliance and judicial review.
Q26: Page 7 of the Problem states that NUARB "rejected the implementation of wood gasification and partial carbon capture and storage as an impermissible redefinition of the proposed source." It also states on Page 13 that NUARB "rejected the concept of a wood gasification combined cycle electricity generation facility as impermissibly 'redefining the source.'" Did NUARB perform any inspections or review of facility proposals by Sylvanergy prior to rejecting wood gasification?
A26: The record is silent on this issue.
Q27: Was there any indication in the proceedings and circumstances that the use of the modifier, "under protest," R. at 6, when Sylvanergy filed their PSD permit, has any legal significance in the record or this case?
A27: The record will not be supplemented on this issue.
Q28: On Page 2 of the Problem (in the issues section) when it says "this Court" does that refer to the United States Court of Appeals for the Twelfth Circuit or does it refer to the Environmental Appeals Board (EAB)?
A28: It refers to the Court of Appeals.
Q29: In regard to the combined facility, does "the capacity of 150,000 tons (dry weight) per year" refer to the wood pellet end-product output capacity, or the biomass-fired electricity generation unit input capacity? (Page 5, Factual Background)
A29: The capacity of 150,000 tons (dry weight) per year refers to the amount of biomass fuel the plant will process and combust in a year.
Q30: Does "500 million Btu/hour" refer to the heat input rate for the combined facility? (Page 5, Factual Background)
Q31: When Sylvanergy “filed a PSD preconstruction permit application,” did it include any forested areas as part of the project, or was it silent on the source of its feedstock, leaving its options open to purchase available feedstock on the market? In other words, did NUARB’s permit condition not only require Sylvanergy to manage a forest in a particular manner, but also require Sylvanergy to purchase a forest for exclusive use as feedstock? Also, if the answer is yes, does the permit require purchase of a particular forest?
A31: The record will not be supplemented on this issue.
Q32: On Page 2 of the Problem it states that Sylvanergy argues that "NUARB improperly rejected a wood gasification and partial carbon capture and storage plant as BACT for the proposed facility." Did NUARB conduct two separate BACT analyses for 1) Wood Gasification and 2) Partial Carbon Capture and Storage? Or is the wood gasification and partial carbon capture and storage plant all apart of one facility/cycle/system?
A32: The record will not be supplemented on this issue.