01-30593. Notice of Prevention of Significant Deterioration (PSD) Final Determination for DPL Energy Montpelier Electric Generating Station, Wells County, IN

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of final action.

SUMMARY:

This notice announces that on March 13, 2001, the Environmental Appeals Board (EAB) of the EPA dismissed a petition for review of a permit issued for DPL Energy Montpelier Electric Generating Station in Wells County, Indiana by the Indiana Department of Environmental Management (IDEM) pursuant to the State of Indiana's approved minor source New Source Review (NSR) permit program.

DATES:

The effective date for the EAB's decision is March 13, 2001. Judicial review of this permit decision, to the extent it is available pursuant to section 307(b)(1) of the Clean Air Act, may be sought by filing a petition for review in the United States Court of Appeals for the Seventh Circuit within 60 days of December 11, 2001.

ADDRESSES:

The documents relevant to the above action are available for public inspection during normal business hours at the following address: EPA, Region 5, 77 West Jackson Boulevard (AR-18J), Chicago, Illinois 60604. To arrange viewing of these documents, call Julie Capasso at [phone].

FOR FURTHER INFORMATION CONTACT:

Julie Capasso, United States Environmental Protection Agency, Region 5, 77 W. Jackson Boulevard (AR-18J), Chicago, Illinois 60604, telephone [phone]. Anyone who wishes to review the EAB decision can obtain it at http://www.epa.gov/​eab/​disk11/​montpelier.pdf.

SUPPLEMENTARY INFORMATION:

This supplemental information is organized as follows:

A. What Action is EPA Taking?

B. What is the Background Information?

C. What did EPA Determine?

A. What Action Is EPA Taking?

We are notifying the public of a final decision by EPA's EAB on a permit issued by IDEM pursuant to the State of Indiana's approved minor source (NSR) permit program.

B. What Is the Background Information?

On December 29, 2000, IDEM issued a “New Source Construction Permit and Minor Source Operation Permit” which authorizes the construction and operation of [8] Twin Pac combustion turbine units, which consist of 16 simple cycle combustion turbines and [8] electric generators. The Permit restricts allowable emissions of any regulated pollutant to no more than 249 tons per year and was issued pursuant to the state's minor source new source review (“NSR”) permit program. In issuing the Permit, IDEM did not in any way invoke its permit-issuing authority pursuant to the prevention of significant deterioration (“PSD”) program that it administers in the state as a federal delegatee.

On January 23, 2001, Stephen A. Loeschner filed a petition contending that IDEM should have issued a federal PSD permit to DPL Energy rather than a minor source NSR permit because, according to Petitioner, the proposed DPL Energy facility, which Petitioner characterizes as a fossil fuel-fired steam electric plant and which has the potential to emit more than 100 tons per year of any air pollutant, is a major emitting facility and, thus, requires a PSD permit.

On February 14, 2001, IDEM filed a Motion for Summary Disposition with the EAB, in which IDEM asserted that the EAB lacked jurisdiction to review the DPL Energy minor source permit. DPL Energy also filed a motion seeking summary disposition on the same grounds. The Office of General Counsel and Office of Regional Counsel in Region 5 filed an amicus curiae brief maintaining that the EAB lacked jurisdiction in this matter.

C. What Did the EAB Determine?

On March 13, 2001, the EAB denied the petition for review for lack of jurisdiction. The EAB explained that none of the sources of the Board's authority to review permit determinations confers jurisdiction on the Board for the sole purpose of reviewing permits issued under an approved minor source NSR program of any state. See In re Carlton, Inc., North Shore Power Plant, PSD Appeal 00-9 [ADMIN. MAT. 41236] (EAB, Feb. 28, 2001), 9 E.A.D. It therefore follows that the Board does not have jurisdiction to review the minor source permit issued by IDEM to DPL Energy. Also, since Carlton further instructs that the Board's jurisdiction to review PSD permits “is limited to federal PSD permits that are actually issued,” it necessarily follows that a state decision not to issue a PSD permit (in contrast to a state decision to deny a PSD permit under a federal program) is not a reviewable decision by the Board.

Dated: November 28, 2001.

Bertram C. Frey,

Acting Regional Administrator, Region 5.