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In re Salt River Project Agricultural Improvement and Power District- Navajo Generating Station

Case Number:NSR Appeal No. 16-01
ELR Citation:47 ELR 41393

Mr. Shawn Dolan (“Petitioner”) petitions the Environmental Appeals Board (“Board”) to review a Minor New Source Review (“NSR”) permit that the United States Environmental Protection Agency, Region 9 (“Region”), issued to the Salt River Project Agricultural Improvement and Power District at its Navajo Generating Station on the Navajo Indian Reservation in Coconino County, Arizona. The Region issued the permit pursuant to the Federal Minor New Source Review Program in Indian Country, 40 C.F.R. §§ 49.151-.161, authorizing the construction and operation of a refined coal treatment system. Petitioner asserts that the permit’s compliance monitoring provisions for opacity, EPA Methods 9 and 22, are inadequate and that the permit should be revised to require the use of the “Digital Camera Opacity Technique,” referred to as “Alternative Method 082” or “ALT-082.”

Held: (1) Although the Board has not previously addressed the standard of review for NSR appeals under 40 C.F.R. Section 49.159, the applicable regulatory language is nearly identical to the regulatory language governing review of other types of permits such as PSD and NPDES permits under 40 C.F.R. part 124. The part 49 rulemaking record indicates that the Agency intended for its appeal procedures to reflect the Agency’s longstanding approach under part 124. Therefore, in reviewing appeals under part 49, the Board will look to decisions regarding review of permitting matters brought under part 124 as relevant precedent in the NSR context.

(2) The Board affirms the Region’s technical determination that the use of EPA Methods 9 and 22 to monitor opacity are sufficient for the refined coal treatment system. The Petition fails to demonstrate that the Region made a clear error of law or fact or abused its discretion.