In re Christian County Generation, L.L.C.
On July 9,2007, Sierra Club filed a petition requesting that the Environmental Appeals Board ("Board") grant review of certain conditions of a prevention of significant deterioration ("PSD") permit that the Illinois Environmental Protection Agency ( "IEPA") issued to Christian County Generation LLC ( "CCG"). The Permit would authorize CCG to construct the Taylorville Energy Center ( the ''Facility"). The Facility is a proposed new coal-fired electric generating plant that would use a coal combustion method known as integrated gasification combined cycle, or IGCC, which is a process by which coal is first converted to a synthetic gas, then cleaned to remove particulate matter, mercury, sulfur compounds and other acid gases, and finally burned in a separate gas turbine to generate electric power.
Sierra Club objects to the issuance of the permit, arguing that the permit must contain a best available control technoloy ("BACT') limit for control of carbon dioxide ("CO2" ) emissions. IEPA, CCG, and EPA's Office of Air and Radiation ("OAR") all contend that the Board should dismiss the petition because Sierra Club did not raise its CO2 BACT issue and related arguments during the public comment period on the draft permit, Raising issues and arguments during the comment period is required by 40 C.F.R. §§124.13, .19(a) to preserve reasonably ascertainable issues or reasonably available arguments for consideration on appeal. Sierra Club argues that it is entitled to raise the CO2 BACT issue for the first time in this administrative appeal because, after the close of public comment, the U.S. Supreme Court held in Massachusetts v. EPA, _U.S-_, 127 S.Ct. 1438 (2007), that CO2 is an air "pollutant" within the meaning of the Clean Air Act. Sierra Club argues that the CO2 BACT issue was not reasonably ascertainable until after the Supreme Court's decision in Massachusetts v. EPA.
Held: Sierra Club's petition is denied on procedural grounds. The Board concludes that Sierra Club cannot raise this issue for the first time in this administrative appeal because it failed to raise it within the time required by 40 C.F.R. §§124.13, .19(a). The Board has routinely denied review where an issue was reasonably
ascertainable but was not raised during the comment period on the draft permit. Here, the Board finds that the issue Sierra Club seeks to raise was reasonably ascertainable before the close of the public cornment period on the draft permit.
At oral argument before the Board, Sierra Club acknowledged that, before the close of public comment (and while Sierra Club was a party to Massachusetts v. EPA pending before the Supreme Court), Sierra Club in fact considered the possibility that the Supreme Court would reach the result that it did in Massachusetts v. EPA. Because Sierm Club was not only able to anticipate, but, in fact, before public comment on the permit closed did specifically contemplate the holding of Massachusetts v. EPA, the arguments Sierra Club now advances based on the Massachusetts decision were reasonably ascertainable or reasonably available within the public comment period. A party's specific conternplation of a possible outcome of a pending Supreme Court case in which that party is involved logically falls within a common sense understanding of "reasonably ascertainable" or "reasonably available." The Board notes that Sierra Club is also the petitioner in another case before the Board, In re Deseret Power Electric Cooperative, PSD Appeal No.07-03, in which petitioner raised the CO2 BACT issue during the public comment period and, therefore, preserved the issue for appeal. In Deseret, like thepresent case, the public comment period closed before the Supreme Court issued its Massachusetts decision. Accordingly, unlike Deseret where it timely raised the issue, Sierra Club waived the CO2 BACT issue in the present case by its failure to raise the issue during the public comment period, as required by the regulations governing this proceeding. The Board further concludes based on all relevant circumstances that the present case is not one appropriate for the Board to depart from normal practice by granting review of an issue that clearly was not properly preserved by the petitioner.