In re Prairie State Generating Co., LLC
The American Bottom Conservancy, American Lung Association of Metropolitan Chicago, Clean Air Task Force, Health and Environmental Justice-St. Louis, Lake County Conservation Alliance, Sierra Club and Valley Watch (collectively, "Petitioners") request review of a prevention of significant deterioration ("PSD") permit ("Permit") that the Illinois Environmental Protection Agency ("IEPA") issued to Prairie State Generating Company, LLC ("Prairie State") authorizing the construction of the Prairie State Generating Station (the "Facility"), which is a proposed 1500-megawatt ("MW") pulverized coal-fuel powered electricity generating plant. The Facility would be located at the mouth of anew underground coal mine, also developed by Prairie State, which would provide the principal source of coal fuel used at the Facility.
Petitioners raise concerns with IEPA's determinations of the "best available control technology" emissions limits ("BACT") for sulfur dioxide ("SO2"), nitrogen oxides ("NOx"), and particulate matter ("PM"). For the most part, Petitioners do not take exception to the technology specified by IEPA for pollutant emissions control, although Petitioners do raise issues with each step of the five-step BACT analyses for several pollutants performed by IEPA. Petitioners raise procedural and substantive objections to IEPA's BACT analyses, beginning with what appears to be their principal concern: the proposed fuel source, relatively high-sulfur Illinois coal from the mine that will be colocated with the electric generating plant. Petitioners also take issue with the permit's resulting numeric emission limits. Petitioners additionally contest IEPA's analysis of the Facility's air quality impacts, contend that a review of environmental impacts under NEPA was warranted, and argue that IEPA violated environmental justice obligations.
Held: Review is denied. Petitioners have not met their burden of demonstrating that IEPA's determinations are either factually or legally "clearly erroneous" or otherwise warrant review.
- The Board rejects Petitioners' argument that IEPA improperly excluded low-sulfur coal from its BACT analysis as a method for controlling emissions of SO2 from the proposed Facility. The statute contemplates that the permit issuer
must look to the pennit applicant to define the proposed facility's purpose or basic design in its application, at least where that purpose or design is objectively discernable, as it is in the present case. This approach not only harmonizes the BACT definition with the permit application process in which the definition must be applied, but also is consistent with the Agency's longstanding policy against redefining the proposed facility. In concluding that compelling use of low-sulfur coal would redefine the proposed Facility's basic design or purpose, IEPA properly considered Prairie State's objectives for the Facility and concluded that the use of a particular 30-year coal supply under common ownership and control is an inherent aspect of the proposed project. The Board is saGsfied that IEPA took a sufficiently hard ldok-at the Facility to determine whether further emissions reductions would be achievable while still meeting Prairie State's purpose.
- The Board rejects Petitioners' argument that IEPA erred as a matter of law when it found that Integrated Gasification Combined Cycle ("IGCC") is a potentially applicable process alternative for controlling SO2 and NOx, but nevertheless excluded IGCC at step 2 of the top-down method. Although Agency guidance generally counsels in favor of a full and detailed impacts analysis at step 4 for each control alternative found to be technically feasible at step 2, there is one narrow exception. A full analysis is not required where there are two or more alternatives with comparable control efficiencies and one is more costly than the other. IEPA's rationale in the present case for rejecting full evaluation of IGCC as a more costly, comparably efficient option falls within this guidance.
- The Board finds no clear error in IEPA's decision not to include coal washing as a supplemental control method (for possible further reduction of SO2 emissions). Petitioners have not shown clear error in IEPA's central conclusion that any benefits of coal washing are outweighed by coal washing's cost, energy, and environmental impacts.
- Although IEPA's analysis of dry cooling as an alternative method for controlling PM emissions from the cooling towers is less than optimal (IEPA's narrative analysis is less than ordinarily expected of a full step 4 impacts analysis), Petitioners have not taken the additional step that they are required to take, which is to put before the Board evidence that the facts are contrary to the reasoning stated in IEPA's narrative analysis.
- The Board rejects Petitioners contention that JEPA failed to provide notice to the public and to adequately consider the Petitioners' concern that the Facility's anticipated use of approximately one million tons of limestone per year to run the SO2 controls may destroy habitat of the Eastern Narrow Mouth Toad if the limestone is mined from the toad's habitat. IEPA's reliance on the Illinois Department of Natural Resources' biological opinion, and IEPA's ultimate conclusion that the proposed technology does not pose a "significant or unusual environmental impact," is supported by the facts in the record and does not constitute clear error. The Board also concludes that the information that became available to IEPA after the close of public comment did not raise substantial new questions that warrant a reopening of the comment period, and the Board finds no error in IEPA's failure to do so.
- Petitioners' argument that IEPA did not consider available variations in the technology selected for control of SO2 is rejected—IEPA did in fact consider technological variations and related performance data. The Board also rejects
Petitioners' argument that IEPA clearly erred by failing to perform a separate BACT analysis for sulfuric acid mist distinct from the BACT analysis for SO2 emissions. Petitioners have failed to point to evidence of error in the permitting authority's analytic methodology, which is the kind of technical determination with respect to which the Board ordinarily defers to the permitting authority.
- The Board rejects Petitioners' contention that IEPA should have "updated" its NOx, BACT determination to take into account new information submitted after the close of public comment. The regulations governing the administrative record generally do not require the issuer of an EPA permit to supplement the record with information submitted by the public after the close of the public comment period. Althougli there arecircumstances in which significant new information that becomes available following the close of public comment appropriately should be considered in finalizing a permit's terms, Petitioners have not demonstrated how the post-comment period information upon which they rely is sufficiently significant to call into question IEPA's permit limit. IEPA did consider, prior to issuing its decision, information substantially similar to the new information upon which Petitioners rely.
- The Board rejects Petitioners' contention that IEPA provided no record justifioation for the use of a safety factor in setting the PM and NOx emissions limits. IEPA specifically identified variability in the data as a reason for its use of a safety factor in setting the emissions limits.
- The Board rejects Petitioners's contention that the total PM10 limit was not established through a BACT top-down analysis. The pollutant at issue is particulate matter. PM10 is not a separate pollutant; instead, it is merely an indicator for PM and consists of two constituent parts: condensable and filterable PM10. It is beyond dispute that IEPA performed a top-down BACT analysis for PM, which included the available and applicable control methods for the filterable and condensable components of PM10.
- The Board rejects Petitioners' objection that the Permit's conditions providing for downward adjustment to the total PM10 limit after analysis of the Facility's actual violates PSD requirements. IEPA specifically concluded that there is scientific uncertainty about whether the PM10 emission limit can be achieved in practice. Under these circumstances, the use of an adjustable limit, constrained by certain parameters, and backed by a worst case air quality analysis, is a reasonable approach.
- Contrary to Petitioners' contentions, the Permit does not provide an exemption from numeric emissions limits for emissions of filterable PM, total PM10, volatile organic matter, sulfuric acid mist, and fluorides from all BACT limits during periods of startup, shutdown and malfunction. The Permit specifically establishes "secondary limits," which are also numeric limits, for these pollutants "for purposes of BACT." These secondary BACT limits were derived directly from the primary heat input BACT limits and do not authorize emissions greater than the primary limits would allow at the units' rated heat input capacity.
- The Board rejects petitioners' request for review of IEPA's surrogate approach to analyzing the Facility's compliance with the new National Ambient Air Quality Standards ("NAAQS") for ozone stated as an 8-hour standard and to the new NAAQS for PM stated as PM2.5 standards. IEPA did precisely what Appendix W (40 C.F.R. pt. 5 1, App. W §§4 6.2. I(c),220.127.116.11(c)) recommends for determining compliance with the 8-hour ozone and PM2.5 NAAQS. IEPA followed Region 5's and EPA's guidance regarding the "most suitable approach" to be used on a case-by-case basis, which was to use the 1-hour ozone and PM10 modeling as a surrogate.
- The Board also rejects Petitioners argument that IEPA improperly disregarded projected violations of the NAAQS for SO2 and PM10 based on a "culpability" analysis that excluded violations falling below certain significant impact levels ("SILs"). IEPA's exclusion of de minimis impacts falling below the SILs is consistent with the statutory text and with longstanding Agency guidance.
- The Board rejects Petitioners's argument that IEPA failed to adequately notify the public of the adverse impact finding made by the federal land manager ("FLM") responsible for the Mingo Class I area. Where the permit issuer provides notice to the FLM that complies with 40 C.F.R. §52.21(p)(l) and the FLM does not make an adverse impact determination and provide such determination to the permit issuer in the time frame specified in 40 C.F.R. §52.21(p)(3), the regulations do not require the permit issuer to subsequently provide a new notice to the public when the FLM issues a later adverse impact finding.
- The Board finds that the delegation of authority to IEPA to issue federal PSD permits does not provide an exception from the obligation to coordinate PSD review with review under the National Environmental Policy Act, 42 U.S.C. §§4321-4370e ("NEPA"). The Board holds that a state permitting agency exercising delegated authority has sufficiently coordinated when the agency concludes that any ongoing NEPA review does not pertain to the portions of the facility subject to PSD regulation.
- Executive Order 12898 instructs federal agencies to address, as appropriate, "disproportionately high and adverse human health or environmental effects of [their] programs, policies, and activities on minority and low-income populations * * *." Environmental justice issues must be considered in connection with the issuance of PSD permits by both the Regions and states acting under delegated authority. The Board rejects Petitioners contention that IEPA failed to adequately consider the environmental justice issues raised during the public comment period, including the comments regarding whether the proposed Facility would have a disproportionate impact on residents of East St. Louis.