In re Newmont Nevada Energy Investment, L.L.C.
On May 5, 2005, the Nevada Division of Environmental Protection (“NDEP”or “Division”), acting under a delegation of authority from Region IX of the United States Environmental Protection Agency (“EPA”), issued a federal prevention of significant deterioration (“PSD”) permit to Newmont Nevada Energy Investment, L.L.C.(“NNEI”), pursuant to Clean Air Act § 165, 42 U.S.C. § 7475. The permit authorizes NNEI to construct a new 200-megawatt pulverized coal-fired electric power generating facility, called the “TS Power Plant,” near the Town of Dunphy in Eureka County, Nevada. On June 3, 2005, the Association for Clean Energy (“ACE”) filed a petition for review of the PSD permit pursuant to EPA’s permitting regulations at 40 C.F.R. part 124. In so doing, ACE raised challenges to NDEP’s decisions and responses to comments pertaining to Best Available Control Technology (“BACT”) determinations for emissions of nitrogen oxides (“NOx”) and particulate matter (“PM”) from the coal-fired boiler and for fugitive dust emissions from various facility components. ACE also challenged a number of permitted emission limits and conditions on the ground that they are not adequately enforceable.
Held: The petition for review of the TS Power Plant PSD permit is denied. The Environmental Appeals Board (“Board”) finds that ACE made no showing of clear error, abuse of discretion, or important policy matter warranting Board review of the permit.
ACE begins its appeal by challenging the NOx BACT analysis conducted for the pulverized coal-fired steam boiler (“PC boiler”), the largest emissions unit included in the design of the proposed TS Power Plant. NDEP determined that BACT for the boiler is 0.067 pounds per MMBtu (“lb/MMBtu”) on a 24-hour rolling average basis, achieved using selective catalytic reduction (“SCR”) and low-NOx burners with over-fire air technology. ACE claims that lower NOx emission limits are achievable for the boiler, and thus the permitted limit does not constitute BACT, for three primary reasons. The Board disagrees, for the following reasons.
(1) First, ACE argues that in establishing BACT for the PC boiler, which requires consideration of “achievable” emissions limits, NDEP erroneously relied only on actually “achieved” NOx emissions levels reached by other facilities. NDEP responds by noting that it did not take the position that an emissions limit must have been achieved in practice but only that the limit must be achievable in practice on a continuous basis. The Board agrees with NDEP, finding that a permit issuer may appropriately consider, as part of its BACT analysis, the extent to which available data in the record evidence the ability to consistently achieve certain emissions rates or control effectiveness of the selected technology or pollution control method. The Board therefore holds that a permit issuer’s rejection of a more stringent emissions limit based on the absence of data showing that the more stringent rate has been consistently achieved over time is not a per se violation of the BACT requirements. The Board further holds that, at the same time, the permit issuer is obliged to adequately explain its rationale for selecting a less stringent emissions limit, and that rationale must be appropriate in light of all evidence in the record.
(2) Second, ACE contends that during the public comment period on the draft PSD permit, it provided numerous examples of BACT determinations for other facilities showing that lower NOx limits are achievable. ACE argues that NDEP failed to adequately consider and respond to these comments and therefore failed to reach a valid NOx BACT result. After examining in detail all six examples brought forward on appeal, the Board finds no clear error or other reason for granting review of the permit on the basis of NDEP’s treatment of these examples. In each instance, the Board holds that ACE failed to surmount its heavy burden of overcoming the deference the Board generally accords to permitting authorities in matters requiring technical expertise.
(3) Third, ACE claims that NDEP responded inadequately to comments it submitted regarding the control efficiency basis for the NOx BACT determination. ACE asserts that NDEP should have evaluated a control efficiency greater than 90 percent in its BACT analysis, rather than merely the 66.5 percent used by the Division, because BACT is an emission limit based on the “maximum degree of reduction” that is “achievable.” The Board agrees that NDEP’s response to comments on this issue was unresponsive but finds more significant the fact that the record indicates NDEP did consider the range of efficiencies of which the SCR control equipment is capable, the range of control efficiencies utilized in NOx BACT emission limits proposed or permitted, and the adverse environmental effects of operating the SCR equipment at maximum efficiency on a continuous basis. Further, the Board finds the resulting emission limit of 0.067 lb/MMBtu to be within the range of proposed or permitted NOx emission limits. The Board does not discount the failure by NDEP to respond directly and thoroughly to comments on the proposed permit but finds that here, where the rationale for the decision can be discerned from the record, the permit need not be remanded.
Next, ACE challenges NDEP’s BACT analysis for PM emissions from the PC boiler, and the Division’s responses to comments thereon, as clearly erroneous. NDEP originally determined that BACT for filterable and condensible PM emissions from the boiler was 0.038 lb/MMBtu on a 24-hour rolling average, achieved using fabric filters. NDEP later reevaluated the situation and decided that for PSD purposes, BACT is typically set for the filterable fraction of PM only, as no technology had been identified, to its knowledge, to control condensible PM emissions from coal-fired boilers and thus it would be technically impossible to establish BACT limits for condensibles in circumstances such as these. After further investigation, NNEI proposed 0.012 lb/MMBtu, on a 24-hour rolling average time period, as an achievable limit for filterable PM emissions from the PC boiler, and NDEP concurred in that limit as BACT. On appeal, ACE raises four challenges, which the Board does not find persuasive, as summarized below.
(1) First, ACE argues that NDEP removed the total (i.e., filterable plus condensible) PM limit from the permit without explaining in the response to comments that it had done so. The Board holds that NDEP clearly explained its actions in this regard in its answers to comments received from EPA Region IX and the National Park Service.
(2) Second, ACE argues that the filterable PM limit included in the final permit is not BACT, as stack tests from similar coal-fired boilers and permit data from a Pennsylvania facility indicate that a lower limit is achievable. The Board holds otherwise, ruling that permit agencies have discretion to set BACT limits at levels that do not necessarily reflect the highest possible control efficiencies ever reached but rather will allow permittees to achieve compliance on a consistent basis. The Board also holds that ACE failed to carry its heavy burden of demonstrating clear error or other reason to remand the permit in this technical area.
(3) Third, ACE charges that NDEP erroneously failed to establish a BACT limit for condensible particulate emissions. The Board disagrees, noting that “[a]lthough BACT is defined as an ‘emission limitation,’ it is also, as its name implies, keyed to a specific control technology.” ACE failed to bring to the Board’s attention any pollution control technologies or techniques that would be applicable to condensible PM emissions from the PC boiler and thus failed to persuade the Board that NDEP committed clear error in choosing not to establish a BACT limit for condensible PM.
(4) Fourth, ACE claims that NDEP failed to respond to a comment that the 24-hour averaging time for PM emissions is not as stringent as a 3-hour averaging period and thus is not BACT. The Board finds that NDEP did provide a brief response to ACE’s comments in this regard, including a statement that the 24-hour averaging period selected was chosen to demonstrate compliance with ambient air quality standards. Because ACE failed to engage this idea on appeal, as it is obliged to do under the permitting rules, the Board declines to remand.
Next, ACE contends that NDEP must require BACT limits for fugitive dust emissions from the coal, ash, lime, and carbon handling operations, storage piles, roadways, and the like. ACE notes that the permit application contained estimated fugitive PM emissions from these various sources, assuming the use of specific control methods and control efficiencies, and suggests that these assumptions be designated as limits in the permit. The Board denies review on this basis because ACE simply repeats the general comments it submitted on the draft permit, which contain little legal or technical analysis of the relevant issues. The Board observes that it is well settled that mere repetition of comments on appeal cannot achieve a petitioner’s goals in these kinds of permit proceedings.
Finally, ACE raises seven primary arguments contending that various permit conditions are not enforceable. The Board finds no merit to any of the contentions, as summarized below.
(1) First, ACE argues that NDEP failed to incorporate adequate provisions in the permit to ensure the enforceability of the PM BACT limits on PC boiler emissions. The Board finds that, to the contrary, the permit contained a substantial number of compliance monitoring and recordkeeping obligations that would ensure the BACT limits are fully enforceable on a continuous basis. The Board further finds that ACE failed to meet its burden of demonstrating that one of the obligations, a calculation of hourly average PM emissions using continuous coal monitoring data and a PM emission factor derived from the stack tests, was clearly erroneous. Similarly, the Board holds that ACE did not demonstrate that NDEP’s decision not to require the installation of a continuous emissions monitor system for PM from the PC boiler was clearly erroneous.
(2) Second, ACE argues that NDEP failed to respond to its suggestion that surrogate emissions monitoring be required to evaluate compliance with volatile organic compound (“VOC”) and sulfuric acid mist emissions. The Board rejects this contention on the grounds that VOCs are not expected to be emitted by the TS Power Plant in amounts that would trigger PSD review for that pollutant, and that sulfur dioxide emissions monitoring will serve as an adequate surrogate for sulfuric acid mist emissions in this case.
(3) Third, ACE charges that NDEP ignored comments it submitted regarding the applicability of BACT limits during startup/shutdown periods. The Board holds that this was not the case and that the permit did not exempt startup/shutdown periods from BACT compliance.
(4) Fourth, ACE challenges a number of stack testing requirements as inadequate, but the Board holds that ACE failed to carry its burden of establishing clear error or other reason to remand on these grounds.
(5) Fifth, ACE argues that NDEP erred by failing to incorporate in the permit dual emissions limits, in lb/hour and lb/MMBtu, to ensure enforceability under all operating conditions. The Board finds no merit to any of ACE’s contentions, as several of the pollutants in question are not PSD-regulated, several already have dual limits directly or as surrogates, and, for the remaining pollutants at issue, dual limits are not needed to ensure continuous compliance in this case where the best available control is the use of low-sulfur fuel rather than any add-on control equipment.
(6) Sixth, ACE claims that the permit does not require adequate monitoring to demonstrate compliance with numeric PM emissions limits set forth in the permit for materials handling operations involving coal, fly ash, bottom ash, recycle ash, lime, and carbon. The Board finds that on appeal ACE merely repeated its comments without demonstrating any reasoned basis in fact or law to support a finding of clear error, abuse of discretion, or other grounds for a remand.
(7) Seventh, ACE contends that NDEP erred in its response to a number of criticisms ACE submitted on the recordkeeping and reporting provisions of the draft permit. The Board rejects ACE’s arguments because they consisted simply of a repetition of its comments with no citation to statutory or regulatory authority or case law to support any of its positions.