We always seem to prefer our energy to come in a form where we can’t really know where it came from. Gasoline comes from a pump at the gas station, doesn’t it? And electricity comes in wires to our house, right? If I can’t see where it comes from beyond that, doesn’t that mean that where it comes from doesn’t matter? Or so the thinking seems to go. And so the thinking went when Port Townsend Paper Corporation sought to add a co-generation facility to its Kraft pulp and paper mill in Port Townsend, Washington.
The co-generation facility was to burn hog fuel (rejects from the mill) and urban wood, including old corrugated containers that had been processed to remove plastics and metal prior to use as fuel, as well as sludge from the mill process waste water treatment plant. The result would be a reduction in the amount of fuel oil burned by Port Townsend Paper of approximately 1,800,000 gallons of fuel each year. The co-generation plant would not only supply the mill’s needs for power but also generate additional electricity to be sold onto the regional distribution network.
Five environmental groups – PT Air Watchers, No Biomass Burn, World Temperate Rainforest Network, Olympic Environmental Council and Olympic Forest Coalition – appealed the Notice of Construction (NOC) issued by the Washington Department of Ecology (DOE) under the Clean Air Act to the Washington Pollution Control Hearings Board (PCHB). On May 10, 2011 the PCHB issued a summary judgment, finding in favor of DOE and Port Townsend Paper on all issues.
Broadly speaking there were two issues. The first was whether Washington law required that an environmental impact statement (EIS) be prepared for the project because it was a solid waste incineration or energy recovery facility. The second was whether the project was a “major modification” under the Clean Air Act, such that it required a prevention of significant deterioration (“PSD”) permit.
RCW 70.95.700 requires that an EIS be prepared for any “solid waste incineration or energy recovery facility.” “Energy recovery” is defined as “a process operating under federal and state environmental laws and regulations for converting solid waste into usable energy and for reducing the volume of solid waste.” The appellants contended that all the fuel the co-generation plant was going to burn – forest biomass and urban wood; oil; sludge from the mill process wastewater treatment plant; and burnable rejects from the mill and old corrugated container recycle facility – was solid waste.
The PCHB disagreed, in a decision that will create essential precedent for all biomass energy projects in Washington. It found that forest biomass is not a solid waste because the 2009 Legislature had passed laws that made forest biomass a marketable commodity, the antithesis of waste. Similarly hog fuel, urban wood and burnable rejects from the mill and old corrugated container recycle facility were once solid waste, but had been treated to render them suitable for industrial combustion and therefore were no longer solid waste. The only proposed fuel that was solid waste was sludge from the wastewater treatment plant, but it was exempt from the EIS requirement because the plant had been burning it for years before RCW 70.95.700 was passed, and it was grandfathered in.
The appellants argued that use of forest biomass would result in additional harvesting of trees, would damage the forests by removing needed waste to decompose on the forest floor, would lead to ocean acidification and would harm endangered species. There the PCHB looked to RCW 70.235.020(3) which excludes consideration of carbon dioxide emitted from industrial combustion of biomass as a greenhouse gas, except for purposes of reporting “as long as the region’s silvicultural sequestration capacity is maintained or increased.” Finding evidence that the region’s silvicultural sequestration capacity is currently increasing, the PCHB found that the project created a net reduction of greenhouse gas emissions.
The appellants wanted to argue the wisdom of allowing biomass combustion – would it lead to over-harvesting, etc. The PCHB was having none of that, finding that the Forest Practices Act, the Forest Practices Rules, the Forest Practices HCP and other existing regulations adequately addressed what happens in the forest.
With respect to the PSD issue, the PCHB relied heavily on DOE’s review and granted DOE deference in the highly technical issues.
“The area of calculation of emissions changes for PSD determinations is highly complex, both technically and legally. Ecology, as the agency in Washington charged with administration, is entitled to deference. The Board concludes that Appellants have not put forward any facts that controvert any material facts in the PSD analysis. Further, Appellants have not made any persuasive legal arguments that PTPC’s PSD analysis, as reviewed and accepted by Ecoloty, was flawed. Therefore, the Board grants summary judgment to Ecology on [the PSD issues].”
So – it was a clean sweep for the biomass facility, and provides strong support to DOE staff that when they do their work, they won’t be second-guessed.