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In re Delta Energy Center

06/20/2017
Case Number:PSD Appeal No. 17-01
ELR Citation:47 ELR 41396

Mr. Rob Simpson filed this petition for review on behalf of himself and Helping Hand Tools (collectively, “Petitioners”). Petitioners allege that Delta Energy Center (“Delta”), which operates a combined cycle gas-fired power plant, obtained an amendment of a license in March 2017 that effectively modified a prevention of significant deterioration (“PSD”) permit issued to Delta under the Clean Air Act, 42 U.S.C. § 7475.

The Bay Area Air Quality Management District (“BAAQMD”) issued Delta’s PSD permit in 1999 as a federal permit under delegated authority from the Environmental Protection Agency (“EPA”). However, effective August 31, 2016, EPA granted BAAQMD the authority to administer its own PSD program, and transferred to BAAQMD all relevant PSD permits, including the Delta PSD permit. Petitioners argue that the Environmental Appeals Board (“Board”) should exercise jurisdiction over the alleged modification of Delta’s PSD permit because it was “issued in violation of state and federal law” and could result in a “complete undermine of PSD permitting integrity in California [p]ower plants.”

Held: The Board lacks jurisdiction to consider the petition for review. Although BAAQMD issued Delta’s PSD permit under a federal delegated program, subsequent to August 31, 2016, any actions on PSD permits, including Delta’s, fall under BAAQMD’s jurisdiction because BAAQMD now administers an approved PSD program under its own authority. Petitioners instead must utilize the available state law procedures for challenging such actions.