07/15/88
Procedures for EPA to Address Deficient New Source Permits Under
the Clean Air Act
MEMORANDUM JULY 15, 1988
SUBJECT: Procedures for EPA to Address Deficient New Source Permits Under
the Clean Air Act
FROM: /s/ David Rochlin, for
Michael S. Alushin
Associate Enforcement Counsel for Air
Office of Enforcement and Compliance Monitoring
/s/ Richard Biondi, for
John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Addressees
INTRODUCTION
This memorandum transmits the final guidance for your use in addressing
deficient new source permits. After we distributed the draft guidance for
comment on December 16, 1987, several Regional Offices took action on
deficient new source permits. The events surrounding those permit actions,
as well as your thoughtful comments on the draft guidance, have shaped the
final policy.
RESPONSE TO COMMENTS
We have incorporated most of your comments into the final guidance. As
you requested, we have included examples of forms showing a request for
permit review under 40 CFR Section 124.19, a Section 167 order, and a
Section 113(a)(5) finding of violation.
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Some commenters suggested that we include a section on actions that can
be taken, not against the source, but against the state issuing the
deficient permit. We agree that this topic should be included in the
guidance because it surfaces repeatedly in individual cases. Therefore, we
have added a section on possible actions against states for issuing
deficient permits. We have also clarified the guidance to indicate that EPA
should send a state written comments at both the draft and final permit
stage when a state is issuing what EPA considers a deficient permit.
Some reviewers requested further elaboration of when to use alternative
enforcement responses. We have indicated relevant considerations in
determining which action to take. One commenter pointed out that the
guidance did not define what was meant by a "deficient permit." This
involves a determination that requires the exercise of judgment. However,
we have tried to list most of the criteria that will support a finding of
deficiency. We realize, however, that we may hot have anticipated every
deficiency that may present itself to every Regional Office in the future.
Concern was expressed over the requirement to respond to a deficient
permit within thirty days. We realize that this is an ambitious objective,
but it is a legal requirement for permit review under 40 CFR Section 124,
and greatly enhances EPA's equitable position in challenges under Section
167 and Section 113(a)(5). It will be easier to meet this deadline if
Regional Offices have routine procedures in place for prompt receipt of all
permits from their states and for through review of permits as they are
received.
A few commenters wanted the guidance expanded to apply to "netting"
actions and "synthetic minor" sources. We agree that guidance in this area
would be useful, but the topic is too broad to be folded into the same
document as the guidance on deficient permits. We have begun work to
address appropriate enforcement action for improper "synthetic minors" in
the context of the Federal Register notice announcing the program for
federally enforceable state operating permits. If you think that separate
enforcement guidance is needed on this subject, please let us know.
Finally, a few reviewers questioned the guidance regarding EPA directly-
issued permits. We agree that, in all cases where we find a deficiency, it
is preferable to change the permit by modifying its terms. If the source is
amenable, we should do so. However, if EPA cannot get the source to accept
new permit conditions, our only options are review under Section 124.19(b),
revocation of the permit, and/or enforcement action. A Section 124.19(b)
review must be taken within 30 days after the permit was issued. The
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regulations are unclear on EPA's authority to revoke PSD permits. In an
enforcement action to force a source, involuntarily, to accept a permit
change when the source has not requested the change or made any modification
to its facility or operations, EPA must always keep in mind the litigation
practicalities and equities. These make enforcing against a permit we have
issued when we are not basing our action on any new information a difficult
proposition.
CONCLUSION
We hope that this guidance will help EPA Regions act to challenge
deficient new source permits. Many of the practices advocated in this
document may be litigated in pending or future cases. We will amend the
guidance as necessary in light of judicial developments. If you have any
questions, please contact attorney Judith Katz at FTS 382-2843.
Attachment
Addressees:
Regional Counsels
Regions I-X
Regional Counsel Air Branch Chiefs
Regions I-X
Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
PSD Contacts
Regions I-X
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Alan Eckert
Associate General Counsel
Greg Foote, OGC
Gary McCutchen
NPPB, AQMD ( MD-15 )
Ron McCallum
Chief Judicial Officer
EPA
David Buente, Chief
Environmental Enforcement Section
DOJ
MEMORANDUM JULY 15, 1988
SUBJECT: Procedures for EPA to Address Deficient New Source Permits Under
the Clean Air Act
FROM: /s/ David Rochlin, for
Michael S. Alushin
Associate Enforcement Counsel for Air
Office of Enforcement and Compliance Monitoring
/s/ Richard Biondi, for
John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: Addressees
I. Introduction
This guidance applies to permits issued for major new sources and major
modifications under both the prevention of significant deterioration ( PSD )
program and the nonattainment new source review ( NSR ) program. It
contains three sets of procedures -- one for permits issued pursuant to EPA-
approved state programs ( NSR permits and PSD permits in more than half the
states ) one for permits issued by states pursuant to delegations of
authority from EPA, and one for instances where EPA issues the permit
directly. An appendix of model forms appears at the end.
The need for this guidance has become increasingly evident in the last
two years. Before then, EPA had attempted only once, in 1981, to enforce
against sources constructing or operating with new source permits the Agency
determined to be deficient. In 1986, EPA litigated Greater Detroit Recovery
Facility v. Adamkus et al. No. 86-CU-72910-DT ( October 21, 1986 ). In that
case, EPA wanted to enforce against a major stationary source constructing
with a PSD permit issued by Michigan under a delegation agreement with EPA.
The Agency had first determined that the best available control technology
( BACT ) determination for SO2 in the permit was inadequate. Before EPA
started formal enforcement action, the source filed suit against the Agency,
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arguing that EPA had no authority to "second guess" the BACT determination
and that, in any event, we should be equitably foreclosed from challenging
the permit because we had remained silent during the two years since we had
failed to comment on the permit. The court agreed and granted the source's
motion for summary judgment.
The Detroit case was an example of the need for prompt and thorough EPA
review of and written comments on new source permits. Our ability to
influence the terms of a permit, both informally and through legal
procedures, diminishes markedly the longer EPA waits after a permit is
issued before objecting to a specific term. This is due both to legal
constraints, that is, tight time limits for comments provided in the
regulations, and to equitable considerations that make courts less likely to
require new sources to accept more stringent permit conditions the farther
planning and construction have progressed. Accordingly, as a prerequisite
to successful enforcement action, it is imperative that EPA review all major
source permit packages on a timely basis and provide detailed comments on
deficiencies. If EPA does not obtain adequate consideration of those
comments, it is also important for EPA to protect air quality by prompt and
consistent enforcement action against sources whose permits are found
lacking.
Because PSD permits are issued on a case-by-case basis, taking into
consideration individual source factors, permitting decisions involve the
exercise of judgment. However, although not an exhaustive list, any one of
the following factors will normally be sufficient for EPA to find a permit
"deficient" and consider enforcement action:
1. BACT determination not using the "top-down" approach.
2. BACT determination not based on a reasoned analysis.
3. No consideration of unregulated toxic pollutants in BACT
determination.
4. Public notice problems - no public notice & comment period or
deficiencies in the public notice.
5. Inadequate air quality modeling demonstrations.
6. Inadequate air quality analysis or impact analysis.
7. Unenforceable permit conditions.
8. For sources that impact Class I areas, inadequate notification of
Federal Land Manager or inadequate consideration of impacts on air
quality related values of Class I areas.
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In NSR permitting, each of the following factors, while not necessarily
an exhaustive list, are grounds for a deficient permit:
1. Incorrect LAER determination, i.e., failure to be at least as
stringent as the most stringent level achieved in practice or
required under any SIP or federally enforceable permit.
2. No finding of state-wide compliance.
3. No emissions offsets or incorrect offsets.
4. Public notice problems - no public notice and comment or
deficiencies in public notice.
5. Unenforceable permit conditions.
II. Timing of EPA Response
A. Comment
Although EPA should know about every permit, at least by the time it is
published as a proposal, the Agency sometimes does not learn about a permit
during its development prior to the time the final permit is issued. If we
do become aware of the permit and have objections to any of its terms, we
should comment during the developmental stage before the permit becomes
final.
State agencies should send copies of all draft permit public notice
packages and all final permits to EPA immediately upon issuance. ( The
requirements for contents of public notice packages are set forth at 40 CFR
Section 51.166(q)(2)(iii). ) The Regional Office should review all draft
permit public notice packages and final permits during the 30 day comment
periods provided for in the federal regulations. It should write detailed
comments whenever Agency staff does not agree with the terms of a draft or
final permit. To make sure they get permits in time for review, Regional
Offices should consider requiring states with approved new source programs,
through Section 105 Grant Conditions, to notify them of the receipt of all
major new source permit applications. They should also require states to
send them copies of their draft permits at the beginning of the public
comment period.
Final permits should be required to be sent to EPA immediately upon
issuance. ( Note that the requirement for Regions to review draft and final
permits is contained in guidance issued by Craig Potter on December 1,
1987. ) Regions should carefully check their agreements with delegated
states. These agreements require
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states to send draft permits to EPA during the comment period. In addition,
40 CFR Section 52.21(u)(2)(ii) requires delegated agencies to send a copy of
any public comment notice to the appropriate regional office. Pursuant to
40 CFR Section 124.15, a final permit does not become effective until 30
days after issuance, unless there are no comments received during the
comment period, in which case it becomes effective immediately. Regions
should make sure that delegated states know about permit appeal procedures
at 40 CFR Section 124 and, if necessary, issue advisory memoranda notifying
them that EPA will use these procedures if the Agency determines a permit is
deficient.
B. Formal Enforcement Action
If the permit was issued under a delegated program, it is important to
initiate formal review or appeal within 30 days after the final permit is
issued. ( This response is set forth in Section IV below. The 30 day
period is required by the regulations at 40 CFR Section 124.19 ). When
enforcing against permits issued under state programs, the same legal
requirement to initiate enforcement within 30 days does not exist, but it is
still extremely important to act expeditiously.
III. Enforcement Against the Source v. Enforcement Against the State
If a state has demonstrated a pattern of repeatedly issuing deficient
permits, EPA may consider revoking the delegation for a delegated state or
acting under Section 113(a)(2) of the Act to assume federal enforcement for
an approved state. It is not appropriate to issue a Section 167 order to a
state. Revocations of delegated authority as to individual permits and
revocations of actual permits are theoretically possible, but they are
unnecessary where EPA can act under Part 124 ( i.e. within 30 days of
issuance ). Revocation may be appropriate where Part 124 appeals are
unavailable, but likely will be subject to legal challenge.
IV. Procedures to Follow When Enforcing Against Deficient Permits in
Delegated Programs
A. If possible, the following actions before construction commences:
1. Take action under 40 CFR Section 124.19(a) or (b) within 30
days of the date the final permit was issued to review
deficient provisions of the permit.
a. Section 124.19(a) is an appeal, which may be taken by any
person who commented during the public comment period.
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b. Section 124.19(b) is a review of the terms of the permit
by the Administrator under his own initiative. Regional
Offices informally request the Administrator to take this
action. They need not have commented during the public
comment period. The Administrator has demonstrated a
preference for using Section 124.19(b) over Section
124.19(a). In the four instances thus far when he was
given the choice of acting under (a) or (b), he chose
(b). However, the Administrator may not have sufficient
time to act within 30 days in every situation in the
future.
2. In the majority of situations, it is more appropriate for the
Agency to act as one body to initiate review under Section
124.19(b). In some instances, however, the third party role
for a Regional Office, through 40 CFR Section 124.19(a) may be
preferable. Regions should pick (a) or (b). However, if both
provisions are legally available, they should request, in the
alternative, that the Administrator act under the provision
other than the one chosen by the Region should he deem it more
appropriate. In particular, if a Region requests the
Administrator to act under Section 124.19(b), it should ask
that its memorandum be considered as a petition for review
under Section 124.19(a) should review under Section 124.19(b)
not be granted within 30 days. This is to protect the
Regions' right to appeal a permit if the Administrator does
not have sufficient time to act. Therefore, all memoranda
requesting review should be written to withstand public
scrutiny if considered as petitions under Section 124.19(a).
3. If the 30 day period for appeal has run and strong equities in
favor of enforcement exist, issue a Section 167 order and be
prepared to file a civil action to prohibit commencement of
construction until the source secures a valid permit. ( See
Section IV B(2) ) below.
B. For sources where construction has already commenced:
1. If the permit was issued less than 30 days previously take
action under 40 CFR Section 124.19.
2. If the permit was issued more than 30 days previously, issue a
Section 167 order requiring immediate cessation of
construction until a valid permit is obtained. This
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step should only be taken if extremely strong equities in
favor of enforcement exist. Regions should be keeping state
and source informed of all informal efforts to change permit
terms before the Section 167 order is issued. Section 167
orders may be used both for sources which have and have not
commenced construction. However, because the Section 124.19
administrative appeal and review process is available in
delegated programs, it is greatly preferred for challenging
deficient permits in states where it can be used.
3. If EPA determines that penalties are appropriate, issue a NOV
under Section 113(a)(1) of the Act for commencement of
construction of a major source or major modification without a
valid permit. This is necessary because Section 167 contains
no penalty authority. Note that strong equities for
enforcement must exist before taking this step. EPA can issue
both a Section 167 order requiring immediate injunctive relief
and a NOV if we decide that both are appropriate.
4. Follow up with judicial action under Section 167 and Section
113(b)(2) if construction continues without a new permit.
C. Note that the appeal provisions of 40 CFR Section 124.19 apply to
all delegated PSD programs even if Section 124.19 is not
specifically referenced in the delegation.
V. Procedures to Follow When Enforcing Against Permits in
EPA-Approved State Programs ( All NSR and More Than
Half of the PSD Programs )
A. Issue Section 113(a)(5) order ( for NSR ) or 167 order ( for
PSD ) as expeditiously as possible, preferably within 30 days
after the permit is issued, requiring the source not to
commence construction, or if already started, to cease
construction ( on the basis that it would be constructing with
an invalid permit ), and to apply for a new permit. Note that
EPA should issue a Section 167 order if it has determined that
there is a reasonable chance the source will comply.
Otherwise, the Region should move directly to section V.D
below.
B. From the outset of EPA's involvement, keep the source informed
of all EPA's attempts to convince the permitting agency to
change the permit.
C. Issue an NOV ( 113(a) ) as soon as construction commences if
EPA determines penalties are appropriate.
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D. If source does not comply with order, follow up with judicial
action under Section 167, Section 113(b)(5), or, if NOV
issued, Section 113(b)(2). If penalties are appropriate,
issue NOV and later amend complaint to add a Section 113 count
when 30 day statutory waiting period has run after initial
action is filed under Section 167.
VI. For EPA-issued Permits ( Non-delegated )
A. If source submitted inadequate information ( e.g., misleading,
not identifying all options ) and EPA recently found out about
it,
1. If within 30 days of permit issuance, request review by
the Administrator under 40 CFR Section 124.19(b).
2. If permit has been issued for more than 30 days, issue
Section 167 or Section 113(a)(5) order preventing start-
up or, if appropriate, immediate cessation of
construction.
3. Issue NOV if construction has commenced and EPA
determines penalties to be appropriate.
4. If necessary, request additional information from source;
if source cooperates, issue new permit.
5. Consider taking judicial action if appropriate.
EPA recognizes the distinction between permits based on faulty and correct
information only for EPA directly-issued permits. This distinction is
necessary for EPA permits due to equitable considerations.
B. If source submitted adequate information and EPA issued faulty
permit, we should attempt to get source to agree to necessary
changes and accept modification of its permit. However, if
source will not agree, only available options are revoking the
permit and enforcing. Consolidated permit regulations are
unclear about EPA's authority to revoke PSD permits. Because
of this and the equitable problems associated with enforcing
against our own permits, unless new information about health
effects or other significant findings is available, we may
choose to accept the permit. If faulty permit produces
unacceptable environmental risk, act under 40 CFR Section
124.19, if possible. If action under 40 CFR Section 124.19
not possible, first revoke permit and then act as set forth in
Section IV.
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Addressees:
Regional Counsels
Regions I-X
Regional Counsel Air Contacts
Regions I-X
Air and waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
PSD Contacts
Regions I-X
Alan Eckert
Associate General Counsel
Greg Foote, OGC
Gary McCutchen
NPPB, AQMD ( MD-15 )
Ron McCallum
Chief Judicial Officer
Bob Van Heuvelen
Environmental Enforcement Section
Department of Justice
David Buente, Chief
Environmental Enforcement Section
Department of Justice
Appendix
1. Request for Review under 40 CFR Section 124.19
2. Section 167 Order
3. Section 113(a)(5) finding of violation and accompanying Section
113(a)(1) Notice of violation
Date: December 31, 1987
Subject: Request for Administrator to Initiate Review of PSD Permit for
Camden County Recovery Facility
From: /s/ Christopher J. Daggett
Regional Administrator
To: Lee M. Thomas
Administrator
I am requesting that, pursuant to 40 CFR 124.19, you review the PSD portion
of the air pollution permit issued to Camden County Energy Recovery
Associates for construction of the Camden County Resource Recovery Facility
in Camden, New Jersey ( CCRRF ). The failure of the New Jersey State
Department of Environmental Protection ( DEP ) to include an emission limit
for PM10 in the permit, to address BACT adequately for PM10 and to provide
for public comment on PM10 as a PSD affected pollutant are grounds for
reviewing the DEP's actions in issuing the permit and for staying the
effectiveness of the permit until all PSD requirements have been met. As
explained below, if you agree that review of this permit is appropriate, you
will have to notify the permittee by January 11, 1988, that you are
initiating review of the PSD portion of the permit.
This permit was issued under various authorities including EPA's PSD permit
authority, 40 CFR 52.21, which is delegated to DEP. Due to promulgation of
the new NAAQS for PM10 on July 1, 1987, the emissions of particulate matter
from the CCRRF became subject to the PSD rules. Particulate matter was not
previously subject to PSD because the area was classified as nonattainment
for the now withdrawn NAAQS for total suspended particulate ( TSP ). My
staff has concluded that the permit and the permit review procedures do not
adequately address PM10 under the applicable PSD regulations.
DEP was aware several months before it issued the permit that the new PM10
NAAQS for particulate matter would require PSD review. Nevertheless, the
permit does not include an emission limitation for particulate matter
expressed as PM10 emissions from the facility. Also, the analysis of the
control technology fails to demonstrate that the system selected would
provide the best degree of emission control currently available for PM10
particulates. Finally, there is a procedural problem with the permit as
well. DEP did not provide notice and an opportunity for the public to
comment on the PM10 aspect of the permit, contrary to the regulatory
requirements and the express advice of Region II.
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The Delegation of PSD Authority to DEP
EPA Region II delegated PSD new source review authority to DEP pursuant to
40 CFR 52.21(u). The PSD permitting authority delegated to the DEP is not
restricted in any way. The delegation is general in nature and includes all
PSD requirements as they are from time to time revised by rulemaking.
Applicability of PM10 Requirements to CCRRF Permit
The application for the CCRRF air pollution control permit was submitted on
April 30, 1986. The DEP required the application to be augmented until the
application was considered complete and the DEP noticed the permits for
public comment on April 28, 1987. A public hearing was held on May 28,
1987, in Camden, New Jersey, and the public comment period ended on June 12,
1987.
PSD requirements are applicable to this permit for particulate matter
because it is not in the class of permits and permit applications that are
covered by the grandfathering exemptions of the PM10 promulgation. No PSD
application addressing particulate matter was submitted for the CCRRF before
July 31, 1987. At the time of the notice period, the facility was required
to undergo preconstruction review under the SIP for TSP because the area was
nonattainment ( secondary ) for TSP but Federal and State permits were not
issued until December 7, 1987. Only sources with PSD applications for
particulate matter or with all Federal and State preconstruction approvals
or permits before July 31, 1987, are exempt from PSD review for PM10. See,
40 CFR 52.21(c)(4)(ix) and (x) ( 52 Fed. Reg. 24714, July 1, 1987 ).
We reminded the DEP, both orally and in writing, of the need to satisfy the
PSD requirements at 40 CFR 52.21 for sources of particulate matter as a
result of the PM10 promulgation. The DEP was informed that the CCRRF was
not grandfathered and required additional PSD review to account for PM10.
BACT Emission Limit Necessary for PM10
The permit has no emission limitation for PM10. BACT is, by definition, an
emissions limitation rather than merely specified types of equipment. 40
CFR 52.21(b)(12). ( The only exception is when there are technological or
economic limitations on the application of measurement methodology. )
Clearly the grandfathering provisions were meant to limit the class of major
new sources for which the particulate emission limit is expressed
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as TSP under the Clean Air Act. Without an express limit on PM10 as a
permit condition, we are concerned that there will be no sufficiently
stringent, enforceable limit on particulate matter for this facility.
Even if the difference between the actual rate of particulate matter
emissions smaller than 10 microns in size occurring as a result of the TSP
limit now in the permit and the PM10 limit that should be in the permit
proves to be small or nonexistent, failing to correct this permit will leave
a muddled and uncertain basis for future enforcement. EPA regulations
clearly require that particulate matter emissions be addressed under the PSD
regulations for this permit and that an emission limit be expressed in terms
of PM10. Region II is concerned that a TSP emission limit in an instance
where PM10 was the PSD regulated pollutant may be unenforceable especially
in light of EPA's conclusion that the NAAQS which triggers PSD for
particulate matter in the case of CCRRF's permit is the new PM10 NAAQS.
See, 52 Fed. Reg. 24694.
The State BACT Analysis
The DEP'S Hearing Officer found that there is no predictable difference
between a baghouse and an electrostatic precipitator ( ESP ) with respect to
PM10 collection efficiency and, therefore, concluded that the ESP determined
adequate for TSP is also adequate as BACT for PM10. Region II considers the
BACT analysis by which the DEP reached its conclusion to be unacceptably
thin in its review of available data. The only analysis which appears to be
available is in a report submitted by letter from the permittee dated
November 16, 1987, responding to a November 2, 1987, request from DEP.
Our review of the BACT analysis shows that it is incomplete and an
inadequate basis for making necessary technical judgments. Some questions
are so fundamental that we cannot make meaningful technical comments. For
example:
1. What are the sources of the engineering and economic data?
2. Why is there no comparison of the particulate size and garbage
characteristics at the cited facilities and what is anticipated at
CCRRF?
3. What were the tests methods employed in obtaining the emissions
data from the cited facilities?
4. Why were three United States facilities referenced but not
considered in the analysis?
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5. Was the removal efficiency data based on a system comparable to
CCRRF's which includes a dry scrubber before the electrostatic
precipitator or baghouse?
These are just some of the questions that we have and which we would
normally review with a PSD permit applicant before public comments are
solicited. With the date of the submission being November 16, 1987, and the
permit issuance date being December 7, 1987, we do not believe that any
meaningful questioning of the permittee's analysis was done by the DEP. The
mere three weeks between the submission of the report and permit issuance
did not allow the Region a meaningful opportunity to resolve EPA concerns.
Public Comment on PM10 PSD Review
In early November, 1987, DEP informed Region II that it had completed the
necessary PSD analysis for PM10 but needed to issue the permit with little
or no time for a public comment period with respect to PM10 because of an
impending financing deadline. On the basis of DEP assurances that PM10 had
been adequately addressed, Region II staff suggested to DEP staff that DEP
might be able to justify a shortened public comment period, but emphasized
that an opportunity for public comment to review the PM10 analysis was
necessary. ( EPA's OGC and OAQPS orally concurred with Region II's
position. ) DEP acknowledged the need for public comment and agreed to
follow appropriate, but shortened, procedures. Region II received a copy of
and began to review the permittee's November 16, 1987, submission. With no
notice for public comment and no further notice to EPA, DEP issued the air
permits to CCRRF along with SPDES and solid waste permits on December 7,
1987.
Region II's advice with respect to the comment period assumed adequate
treatment of PM10 under PSD requirements. Having subsequently reviewed the
BACT analysis and the permit itself, we now believe that these do not meet
the requirements of PSD and any reason to allow less than 30 days for public
comment on the PM10 analysis would be unjustified.
Recommendation
I am asking that you initiate review of the CCRRF permit with respect to
compliance with PSD review procedures applicable to PM10. Specifically, the
review should address:
1. The failure to include BACT expressed as a PM10 emission limit in
the permit.
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2. The adequacy of the review of available technology in establishing
BACT.
3. The failure to provide for public comment regarding the PM10
limitations.
A December 1, 1987, memorandum from Craig Potter, Assistant Administrator
for Air and Radiation, calls for regional offices to monitor state
compliance with preconstruction reviews to prevent instances such as this.
We have done so in this case but were not consulted by the DEP when it
decided to reject EPA's direction and issue the permit. We expect that the
DEP and the permittee will correct this action rather than go through the
entire review process but the issuance of the permit leaves us with no
choice but to seek to commence review to prevent the action taken by DEP
from becoming final action.
We are prepared to continue working with the DEP to act on the permit
expeditiously should the DEP and the permittee agree to remedy the
deficiencies discussed above. We have also explained to the DEP that, if
appropriate, Region II could request a stay of EPA's permit review
proceedings in the interim. In this regard, the DEP has contacted Region II
and is exploring ways to take valid legal action on their own which would
eliminate the need for you to act on this request for review by January 11.
If the DEP should take such action, we will notify you immediately. I
request that you alert me before you issue an order under Section 124.19(c).
Procedures and Time Limitations
We are concerned that review procedures be initiated within the time period
allowed by the regulations, 40 CFR Part 124, so that we are not foreclosed
from raising these important issues. Under Section 124.19(a), if this is
construed as a petition for review, the petition must be filed within 30
days of service of the notice by the DEP of its final permit decision and
the Administrator must issue an order granting the review within a
reasonable time. Section 124.19(c). If for any reason you determine that
Section 124.19(a) is not the proper procedure, we would request you to
initiate review on your own initiative under Section 124.19(b), which
appears to require you to act within the initial 30 days.
Based on the issuance of the permit on December 7, 1987, we calculate that
the 30 day period from the issuance of the permit will end on January 11,
1988. Pursuant to Section 124.20(a), the time began to run on the day after
permit issuance. Since service of the DEP notice was by mail, we have added
three days to the prescribed time in accordance with Section 124.20(d). The
thirty-third day after December 7, 1987, is January 9, 1988, which is a
Saturday, and Section 124.20(c) provides that the time period is extended to
the next working day which is Monday, January 11, 1988. If this is
construed as a review on your
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own initiative, notice must be given by this date and we recommend that
notice granting review in either case be provided by January 11, 1988.
The regional office filed comments on the draft permit within the DEP's
public comment period. See, Hearing Officer's Report, December 7, 1987,
Appendix B. We construe the definition of person in Section 124.41 to
include an EPA regional office. Therefore the Region, as a person who filed
comments, is a proper party to file a petition for review under Section
124.19(a).
By whichever means review is initiated, the review procedure is intended to
prevent raising facts or issues on appeal that were not raised in the public
comment period. See, 45 Fed. Reg. 33411, Col. 3 ( May 19, 1980 ). Section
124.19(a) requires a statement that the issues being raised for review were
raised during the comment period to the extent required by Part 124. A
person's obligation is to "raise all reasonably ascertainable issues and
submit all reasonably available arguments . . . by the close of the public
comment period." Section 124.13. The issues raised herein were not
required to be raised earlier since these issues could not have been known
at the time the comment period closed on June 12, 1987. Indeed, we had
advised the DEP that a public comment period should be provided so that
public comments could be received on the PM10 permit decision.
Notice of the initiation of the review procedures should be sent to:
Mr. Robert Donahue
President
Camden County Energy Recovery Associates
110 South Orange Avenue
Livingston, New Jersey 07039
Mr. Richard T. Dewling
Commissioner
New Jersey State Department of
Environmental Protection
401 East State Street
CN-027
Trenton, New Jersey 08625
Mr. Gary Pierce
Chief
Bureau of Engineering and
Regulatory Development
Division of Environmental Quality
New Jersey State Department of
Environmental Protection
401 East State Street
CN-027
Trenton, New Jersey 08625
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Enclosed are copies of the following documents upon which this request is
based:
1. PERMIT TO CONSTRUCT, INSTALL, OR ALTER CONTROL APPARATUS OR
EQUIPMENT AND TEMPORARY CERTIFICATE TO OPERATE CONTROL APPARATUS OR
EQUIPMENT AND PREVENTION OF SIGNIFICANT DETERIORATION PERMIT
December 7, 1987.
2. HEARING OFFICER'S REPORT FOR THE APPLICATION BY CAMDEN COUNTY
ENERGY RECOVERY ASSOCIATES TO CONSTRUCT AND OPERATE A SOLID WASTE
RESOURCE RECOVERY FACILITY
December 7, 1987.
3. Letter from Robert F. Donahue, President, Camden County Energy
Recovery Associates to Jorge H. Berkowitz, New Jersey State
Department of Environmental Protection, Subject: Camden County
Resource Recovery Facility PM10 BACT Analysis, with enclosure
November 16, 1987.
Enclosures (3)
cc: Thomas L. Adams, LE-133
Francis S. Blake, LE-130
J. Craig Potter, ANR-443
Ronald L. McCallum, A-101
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
In the matter of: )
)
LAKE COUNTY WASTE TO ENERGY FACILITY )
) Order
OKAHUMPKA, FLORIDA )
PROCEEDINGS UNDER )
SECTION 167 OF THE CLEAN )
AIR ACT, AS AMENDED, 42 USC SECTION )
7477 )
ADMINISTRATIVE ORDER
This Administrative Order is issued this date by the Regional
Administrator, Region IV, United States Environmental Protection Agency
( EPA ), pursuant to Section 167 of the Clean Air Act ( the Act ), 42 USC
Section 7477.
FINDING OF FACT
1. The NRG / Recovery Group, Inc., proposes to construct and operate a
Lake County Waste to Energy Facility ( Lake County ) in Okahumpka, Lake
County, Florida. The Lake County facility will consist of two mass burn
incinerators which will each incinerate approximately 250 tons per day of
municipal solid waste. These incinerators will be fueled with a combination
of municipal solid waste and wood chips. These incinerators will emit
particulate matter, sulfur dioxide ( SO2 ), nitrogen oxides, carbon
monoxide, volatile organic compounds, lead, beryllium, fluoride, sulfuric
acid mist, mercury, dioxins,
- 2 -
dibenzofurans, and hydrogen chloride. All of the aforementioned pollutants
are regulated by the Act except dioxins, dibenzofurans, and hydrogen
chloride.
2. The area of construction of the Lake County Waste to Energy
Facility is located in an attainment area for all pollutants regulated by
the Act. ( 40 Code of Federal Regulations ( CFR ) Section 81.310 ) The
facility is considered a major stationary source because its potential
emissions ( which are subject to regulations under the Act ) are above the
Prevention of Significant Deterioration ( PSD ) of Air Quality threshold
level. Consequently, this facility is regulated under the PSD rules and
regulations.
3. On March 11, 1986, the NRG / Recovery Group applied to the Florida
Department of Environmental Regulation ( DER ) for a PSD permit to construct
and operate two 250 tons per day municipal solid waste energy recovery units
at its Lake County facility located on Jim Rogers Road in Okahumpka,
Florida, pursuant to the Florida State Implementation Plan ( SIP ) ( Florida
Administrative Code ( F.A.C. ) Rule 17-2.500 et seq. ).
4. On May 20, 1986, in response to said PSD application, the Florida
DER issued a Preliminary Determination which contained, in the State's
judgment, the Best Available Control Technology ( BACT ) for the proposed
incinerators. The BACT Determination contained emission limits for all
applicable pollutants regulated by the Act and contemplated that a baghouse
( to control particulates ) in combination
- 3 -
with a scrubber ( to control acid gases ) constituted BACT.
5. On July 2, 1986, EPA notified the Florida DER that the SO2 emission
limit contained in the Florida DER BACT Determination may not adequately
reflect BACT ( i.e., proposed SO2 emission limit not sufficiently
stringent ) and that the BACT Determination should also consider the effect
of controlling SO2 on unregulated pollutants such as hydrogen chloride and
dioxin. Furthermore, EPA informed DER that it was EPA policy that the
control of nonregulated air pollutants may be considered in imposing a more
stringent BACT limit on regulated pollutants, if there is a reduction in the
nonregulated air pollutants which can be directly attributed to the control
device selected for the abatement of the regulated pollutants.
6. On August 15, 1986, DER issued a second PSD Preliminary
Determination with a modified BACT Determination. The modified BACT
Determination no longer contained the requirement for acid gas controls, but
only required that the applicant leave space for the acid gas control
equipment in the event there would be a future state rule change for
resource recovery facilities. Removal of the requirement to employ acid gas
control meant the modified BACT Determination could not adequately address
EPA's concern about a more stringent SO2 emission limit.
7. On September 19, 1986, EPA notified DER that EPA was not persuaded
by Lake County's contention that municipal solid waste incineration with
acid gas control is not
- 4 -
economically feasible.
8. On September 24, 1986, the Florida DER issued its Final
Determination and PSD permit to the NRG / Recovery Group for the proposed
Lake County facility. The Final Determination and State PSD permit did not
require the installation of acid gas control.
9. On October 23, 1986, EPA notified the Florida DER that EPA did not
concur with DER's Final Determination regarding the issue of BACT. EPA
recommended that the Final Determination and the Florida DER permit be
reissued with a BACT Determination which reflects state-of-the-art
technology ( acid gas control and more stringent emission limitations for
particulate matter and SO2 ).
10. On January 30, 1987, EPA-Region IV prepared an independent BACT
analysis, which varied from DER's Final Determination, in that it contained
more stringent emission limitations for particulate matter and SO2
( achieved through the use of high efficiency particulate emission and acid
gas controls ).
11. On February 11, 1987, EPA notified Florida DER that the DER PSD
permit issued to the NRG / Recovery Group for the Lake County facility on
September 24, 1986, was deficient and that EPA may initiate appropriate
enforcement action against the Lake County facility to prevent or delay the
construction of the facility.
12. On February 11, 1987, EPA notified the NRG / Recovery
- 5 -
Group that the Florida DER PSD permit was deficient and that unless the DER
PSD permit was modified to reflect what EPA considers BACT, EPA may initiate
appropriate enforcement action to prevent or delay the construction of the
facility.
CONCLUSIONS OF LAW
1. The Administrator of the EPA pursuant to his authority under
Section 109 of the Act, 42 USC Section 7409, promulgated National Primary
and Secondary Ambient Air Quality Standards ( NAAQS ) for certain criteria
pollutants, including total suspended particulate matter, sulfur oxides
( SO2 ), nitrogen oxides, carbon monoxide, ozone, and lead. ( 40 CFR
Sections 50.4 - 50.12 )
2. Pursuant to Section 110 of the Act, 42 USC Section 7410, the
Administrator of EPA, in 45 Federal Register 52676 ( August 7, 1980 ),
promulgated amended regulations for PSD in areas where the existing air
quality is better than said ambient standards and incorporated said
regulations into the various implementation plans of each state. The
relevant regulations are codified at 40 CFR Section 51.24.
3. The Florida SIP contains federally approved PSD regulations, based
on the above-referenced PSD regulations, for such attainment or "clean air"
areas. ( F.A.C. Rule 17-2.500 )
4. The area of construction for the Lake County Waste to Energy
facility is an attainment area for NAAQS for all pollutants. ( 40 CFR
Section 81.310 )
- 6 -
5. NRG / Recovery Group is the owner and operator of the major
emitting resource recovery facility in Lake County, Florida, and proposes to
construct at that site pursuant to the PSD permit issued to the Lake County
Waste to Energy facility by Florida DER on September 24, 1986.
6. EPA finds the Florida DER PSD permit issued to the Lake County
Waste to Energy facility to be deficient in that it fails to require the
installation of acid gas control. The Florida DER PSD permit also fails to
require more stringent emission limitations for particulate matter and SO2.
These deficiencies invalidate the State-issued PSD permit.
7. The construction of the Lake County Waste to Energy facility
pursuant to an invalid permit will violate Section 165(a) of the Act, 42 USC
Section 7475(a), and 40 CFR Section 51.24. Consequently, the issuance of
this order, pursuant to Section 167 of the Act, 42 USC Section 7477, is
required to prevent such construction.
8. The authority of the Administrator of EPA pursuant to Section
113(a) of the Act, 42 USC Section 7413(a), to make findings of violation of
the Florida SIP, to issue notices of violation and to confer with the
alleged violator has been delegated, first, to the Regional Administrator
( earlier delegation consolidated to Delegations Manual, No. 7-6 ( July 25,
1984 ) ) and second, to the Director, Air, Pesticides, and Toxics Management
Division, Region IV ( earlier delegation consolidated
- 7 -
in Region IV Delegation Manual, No. 4-2 ( March 15, 1985 ) ).
9. The authority of the Administrator of EPA to issue orders pursuant
to Section 167 of the Act, 42 USC Section 7477, was delegated to the
Regional Administrator ( earlier delegation consolidated to Delegations
Manual, No. 7-38 ( July 25, 1984 ) ). The Regional Administrator, Region
IV, has also consulted with the Associate Enforcement Counsel for Air and
the Director of the Stationary Source Compliance Division pursuant to
delegation requirement.
ORDER
Consequently, based upon investigation and analysis of all relevant
facts, including any good faith efforts to comply, and pursuant to Section
167 of the Clean Air Act, 42 USC Section 7477, the NRG / Recovery Group,
Inc. ( Lake County Waste to Energy facility ), is hereby ORDERED:
1. effective immediately upon receipt of this Order, not to commence
any on-site construction activity of a permanent nature on its two 250 tons
per day municipal solid waste energy recovery units, including, but not
limited to, installation of building supports and foundations, paving,
laying of underground pipe, construction of permanent storage structures and
activities of a similar nature.
2. not to commence any on-site construction activity until it has
received a Prevention of Significant Deterioration ( PSD ) permit and Final
Determination that incorporates all
- 8 -
the requirements for PSD pursuant to and in accordance with the provisions
of Part C, Subpart 1 of the Clean Air Act, as amended, 42 USC Section 7470
et. seq., the regulations promulgated thereunder at 40 CFR Section 51.24
and/or the regulations of the federally enforceable Florida State
Implementation Plan, Rule 17-2.500 of the Florida Administrative Code, and
Chapter 403 of the Florida Statutes including EPA's Best Available Control
Technology analysis, dated January 30, 1987 ( which addresses acid gas
control and more stringent emission limitations for sulfur dioxide and
particulate matter ), and;
3. to submit, no later than ten (10) days after receipt of this Order,
certification that the prohibition in paragraph one (1) of this Order has
been observed and will continue to be observed until the permit referenced
in paragraph two (2) of this Order has been issued. Such certification
shall be submitted to:
Winston A. Smith, Director
Air, Pesticides, and Toxics
Management Division
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(404) 347-3043
June 3, 1987 Jack E. Ravan
____________ /s/ _____________
Date JACK E. RAVAN
Regional Administrator
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION V
IN REGARDING: )
)
Indiana Department of Environmental ) FINDING OF VIOLATION
Management ) EPA-5-86-A-50
St. Joseph County Health )
Department )
Air Pollution, Permit to Operate )
Dated February 6, 1986, to )
A.M. General Corporation )
)
A PROCEEDING PURSUANT TO )
SECTION 113(a)(5) OF THE )
CLEAN AIR ACT, AS AMENDED )
( 42 USC Section 7413 (a) ) )
INTRODUCTION
On February 6, 1986, the St. Joseph County Health Department, as duly
authorized delegate of the State of Indiana, issued a permit to operate
several air pollution sources operated by AM General Corporation located at
13200 McKinley, Mishawaka, Indiana.
FINDING OF VIOLATION
For reasons set forth below, the Administrator finds that the permit to
operate, issued by the St. Joseph County Health Department on February 6,
1986, to AM General Corporation, ( AMG ) failed to comply with the
requirements of Indiana Air Pollution Control Regulation APC-19 Section 4
and 8 that the St. Joseph County Health Department, as duly authorized
delegate of the State of Indiana, did not act in compliance with those
requirements.
The permit to operate issued by St. Joseph County Health Department on
February 6, 1986, to AM General Corporation increased the Volatile Organic
Compounds ( VOC ) emissions from 197.3 tons per year to 377.0 tons per year.
This VOC emission increase of 179.7 tons per year allowed to AMG, subjects
the facility to Regulation APC-19.
- 2 -
Regulation APC-19 Section 4 b(4) requires any person proposing the
construction, modification or reconstruction of a major facility which will
impact on the air quality of a nonattainment area or which will be located
in a nonattainment area, shall comply with the requirement of Section 8 of
this regulation, as applicable.
Regulation APC-19 Section 8 requires the same person to demonstrate
along with other requirements:
(1) Increased emissions of the pollutant are to be offset and are equal
to 90 percent or less of the offsetting emissions.
(2) Application of emissions limitation devices or techniques such that
the Lowest Achievable Emission Rate ( LAER ) for the pollutant will
be achieved.
This document serves as notification that the Administrator, by duly
delegated authority, has made a finding under Section 113(a)(5) of the Clean
Air Act, as amended, 42 USC Section 7413(a)(5), and is served on both the
State of Indiana and its delegate, the St. Joseph County Health Department,
as well as AM General Corporation to provide an opportunity to confer with
the Administrator prior to initiation of a civil action pursuant to Section
113(b)(5). By offering the opportunity for such a conference or
participating in one, the Administrator does not waive his right to commence
a civil action immediately under Section 113(b).
Date: June 19, 1986 David Kee
/s/ _________
DAVID KEE
Director
Air Management Division
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
In the Matter of: )
)
AM GENERAL CORPORATION ) NOTICE OF VIOLATION
MISHAWAKA, INDIANA ) EPA-5-86-A-49
)
Proceedings Pursuant to )
Section 113(a)(1) of the )
Clean Air Act, as amended )
( 42 USC Section 7413(a)(1) ) )
STATUTORY AUTHORITY
This Notice of Violation is issued pursuant to Section 113(a)(1) of the
Clean Air Act, as amended, ( 42 USC Section 7413(a)(1) ); hereafter referred
to as the "Act".
FINDINGS OF VIOLATION
The Administrator of the United States Environmental Protection Agency
( U.S. EPA ), by authority duly delegated to the undersigned, finds:
1. Indiana Air Pollution Control Board ( IAPCB ) Regulation APC-19
dealing with Permits, PSD, Emission Offsets, is part of the
applicable implementation plan for the State of Indiana approved by
U.S. EPA on February 16, 1982, at 47 Federal Register 6621 and
establish operating and construction permit requirements pertaining
to AM General Corporation's facility located at 13200 McKinley
Highway, Mishawaka, Indiana.
2. As indicated more specifically below:
AM General Corporation ( AMG ) operates a miscellaneous metal part
coating facility in Mishawaka, Indiana which is in violation of
IAPCB regulation APC-19 as given below:
(a) On February 6, 1986 AM General Corporation was issued a permit
to operate, by St. Joseph County Health Department. This
permit to operate allows AMG, to increase its volatile organic
compounds ( VOC ) emissions from 197.3 tons per year to 377
tons per year. This VOC emission increase of 179.7 tons per
year allowed to AMG subject the facility to IAPCB regulation
APC-19.
(b) This permit to operate issued to AMG, failed to comply with
the requirements of IAPCB regulation APC-19, Section 4 and 8
as:
2
(i) the applicant did not apply emission limitation devices
or techniques such that the lowest Achievable Emission
Rate ( LAER ) for VOC was not achieved.
(ii) the increased VOC emissions were not offset by a
reduction in VOC emission by existing facilities.
NOTICE OF VIOLATION
The Administrator of the U.S. EPA, by authority duly delegated to the
undersigned, notifies the State of Indiana and the AM General Corporation,
that the facility described above is in violation of the applicable
implementation plan as set forth in the Finding of Violation.
Date June 19, 1986 David Kee
/s/ _________
DAVID KEE
Director
Air Management Division
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