03-11190. Notice of Prevention of Significant Deterioration Final Determination for the Sierra Pacific Industries Cogeneration Facility in Aberdeen, WA

AGENCY:

Environmental Protection Agency (“EPA”).

ACTION:

Notice of final action.

SUMMARY:

This document announces that on January 7, 2003, the Environmental Appeals Board (“EAB”) of EPA denied a petition for review of a permit issued for the Sierra Pacific Industries cogeneration facility in Aberdeen, Washington (“SPI”) by the State of Washington's Department of Ecology (“Ecology”) pursuant to the Prevention of Significant Deterioration of Air Quality (“PSD”) regulations. Ecology issued the PSD permit pursuant to the “Agreement for Delegation of the Federal Prevention of Significant Deterioration (PSD) Program,” between EPA, Region 10 and Ecology dated February 7, 2002 (“PSD Delegation Agreement”) authorized under the regulations for PSD.

DATES:

The effective date for the EAB's decision is January 7, 2003. Judicial review of this permit decision, to the extent it is available pursuant to section 307(b)(1) of the Clean Air Act (“CAA”), may be sought by filing a petition for review in the United States Court of Appeals for the Ninth Circuit within 60 days of May 6, 2003.

ADDRESSES:

The documents relevant to the above action are available for public inspection during normal business hours at the following address: EPA, Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. To arrange viewing of these documents, call Daniel Meyer at [phone].

FOR FURTHER INFORMATION CONTACT:

Daniel Meyer, EPA, Region 10, 1200 Sixth Avenue (OAQ-107), Seattle, Washington, 98101.

SUPPLEMENTARY INFORMATION:

This supplementary information is organized as follows:

A. What Action is EPA Taking?

B. What is the Background Information?

C. What did the EAB Decide?

A. What Action Is EPA Taking?

We are notifying the public of a final decision by EPA's EAB on a permit issued by Ecology to SPI pursuant to the PSD regulations found at 40 CFR 52.21.

B. What Is the Background Information?

On October 17, 2002, Ecology issued a PSD permit pursuant to Section 165 of the CAA, 42 U.S.C. 7475, 40 CFR 52.21, and the terms and conditions of the PSD Delegation Agreement for installation and construction of a wood-waste-fired boiler and steam-driven electricity-generating turbine at SPI's cogeneration facility in Aberdeen, Washington. The facility is subject to PSD for nitrogen oxides (“NO_X”), carbon monoxide (“CO”), particulate matter (“PM”), and particulate matter with an aerodynamic diameter less than 10 micrometers (“PM₁₀”). During the public comment period preceding issuance of the permit, written comments objecting to the permit were submitted by David Fletcher and his consultant, John Williams. These comments were withdrawn in writing before the end of the public comment period. Ecology did not respond to these written comments before issuing the final permit. After issuance of the final PSD permit, Stanley W. Cleverly (“Petitioner”) filed a petition challenging the PSD permit, alleging that (1) the permit did not require best available control technology (“BACT”) for emissions of NO_X, CO, and PM₁₀; (2) Ecology exercised discretion warranting review by the EAB when it failed to address the withdrawn comments; and (3) Ecology should have considered the withdrawn comments because Petitioner incorporated them by reference into his own oral comments at a public hearing on the draft permit.

C. What Did the EAB Decide?

On January 7, 2003, the EAB denied review of the petition. The EAB determined that the issues were not preserved on appeal because the Petitioner's oral comments at the hearing did not incorporate the withdrawn comments by reference and because the Petitioner's comments regarding Ecology's BACT determination lacked sufficient specificity. The EAB also determined that Ecology was under no legal obligation to respond to the written comments submitted by Fletcher and Williams because the comments had clearly been withdrawn. The EAB therefore concluded that Ecology did not exercise any discretion warranting review when Ecology determined that no response to the comments was needed.

Pursuant to 40 CFR 124.19(f)(1), for purposes of judicial review, final Agency action occurs when a final PSD permit is issued and Agency review procedures are exhausted. This notice is being published pursuant to 40 CFR 124.19(f)(2), which requires notice of any final agency action regarding a permit to be published in the Federal Register. This notice being published today in the Federal Register constitutes notice of the final Agency action denying review of the PSD permit and, consequently, notice of the Ecology's issuance of PSD permit No. PSD-02-02 to SPI. If available, judicial review of these determinations under Section 307(b)(1) of the CAA may be sought only by the filing of a petition for review in the United States Court of Appeals for the Ninth Circuit, within 60 days from the date on which this notice is published in the Federal Register. Under Section 307(b)(2) of the Act, this determination shall not be subject to later judicial review in any civil or criminal proceedings for enforcement.

Dated: April 23, 2003.

L. John Iani,

Regional Administrator, Region 10.