Santa Teresa Citizen Action Group v. Environmental Appeals Board

51 F. App'x 702

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2002
• Docket: No. 01-71611
• Status: Published

Opinion

MEMORANDUM

*

The Environmental Appeals Board (“EAB") did not abuse its discretion in denying Santa Teresa’s¹ petition for review of the federal prevention of significant deterioration permit (“permit”) issued by the Bay Area Quality Management District (“District”) pursuant to section 165 of the Clean Air Act, 42 U.S.C. § 7475.

After the close of the comment period and prior to its issuance of the final permit, the District nonetheless responded to further comment and criticism by undertaking a top-down analysis of the best available control technology (“BACT”), an analysis the petitioners sought. Further, the EAB responded fully to Santa Teresa’s challenge to the BACT analysis. Accordingly, we conclude that Santa Teresa failed to demonstrate that its comments did not have full consideration by both the District and the EAB or that it was prejudiced by the District’s failure to reopen the comment period. See Hall v. United States EPA, 273 F.3d 1146, 1163 (9th Cir.2001).

We defer to the EAB’s expertise in its reasonable resolution of scientific and technical matters. See Cent. Ariz. Water Conservation Dist. v. United States EPA, 990 F.2d 1531, 1540 (9th Cir.1993). The EAB did not abuse its discretion when it determined that the District properly based its BACT analysis upon generally accepted emissions limits. See Alaska Dep’t of Envtl. Conservation v. United States EPA, 298 F.3d 814, 822 (9th Cir.2002); Ariz. Cattle Growers' Ass’n v. United States Fish and Wildlife, 273 F.3d 1229, 1236 (9th Cir.2001).

Finally, the EAB did not abuse its discretion in refusing to exercise jurisdiction over Santa Teresa’s California Environmental Quality Act (“CEQA”) claims. Consistent with its prior decisions, the EAB properly concluded that CEQA was a matter of state law inapplicable to its review of the federal permit. See In re Knauf Fiber Glass, PSD Permit No. 97-PO-06, 1999 WL 64235 (EAB Feb. 4, 1999).

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . “Santa Teresa” refers collectively to petitioners Santa Teresa Action Group, the City of Morgan Hill, Demand Clean Air, and Californians for Renewable Energy.