Judge rejects permit appeal; Nippon moving forward



On June 27, Judge James Dixon of the Thurston County Superior Court formally dismissed a lawsuit brought over the Nippon Industries' cogeneration plant now under construction at the company's Port Angeles facility. The biomass burner is expected to fire up in mid-2013.


The written response provides the details, but the outcome was anticipated since the June 6 hearing when Dixon said he would uphold a decision by the Pollution Control Hearings Board.


Following the hearing, Paul Perlwitz, environmental manager for Nippon, said, "We want to see the judge's decision — but we're happy with what he said he's going to do."


Perlwitz added that the project has previously received a thumbs-up from the Olympic Region Clean Air Agency (ORCAA), the Washington Department of Ecology, the Shoreline Hearings Board and the City of Port Angeles.


In their suit, the appellants argued the air permit issued by the Olympic Region Clean Air Agency fails to require Best Available Control Technology (BACT) “for at least three health-damaging components” that will be released by the burner.


They said Nippon’s plans to generate electricity by burning wood included assurances that the company would provide state-of-the-art systems “to control the noxious gases and health-damaging particles it would release.”


The Nippon plan falls short, they said.


ORCAA and Ecology officials disagreed with that assessment.


In upholding the decision of the Pollution Control Hearings Board, Dixon wrote that "great deference is afforded to Department of Ecology (DOE) and DOE determinations, rulings and interpretations of the statutes and code it administers." 


He added that the appellants had relied on the New Source Review Manual to support its findings. "However," Dixon wrote, "as recognized by all of the parties to this action, the … Manual is not binding. Moreover, the manual refers only to 'major' source … permitting."


Nippon had applied for a "minor" permit, which was approved by Ecology and ORCAA.


Dixon also said the appellants had claimed that in an earlier appeal the Pollution Control Hearings Board had failed to look at two superior pollution control technologies. The judge noted that new issues can't be raised on appeal and added that "the technologies supported by the petitions are fundamentally inconsistent with the project at issue."


The appellants also questioned the emissions factors used by Ecology, which the judge also rejected.
"Based upon the record before this court, there is no evidence to conclude the decisions reached by the PCHB, DOE or ORCAA are clearly erroneous or arbitrary or capricious."


The appellants included Protect the Peninsula’s Future, North Olympic Group of the Sierra Club, No Biomass Burn, World Temperate Rainforest Network and others.

Reach Mark Couhig at



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