D 

o 

JAN 1 2 2012 

(Slip Opinion) 

NOTICE: This opinion is subject to formal revision before 

publication in the Environmental Administrative Decisions (E.A.D.). 

Readers are requested to notify the Environmental Appeals Board, 

U. S. Environmental Protection Agency, Washington, D. C. 20460, of 

any typographical or other formal errors, in order that corrections 

may be made before publication. 

BEFORE THE ENVIRONMENTAL APPEALS BOARD 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

Inre: 

Shell Gulf of Mexico, Inc. 

OCS Permit No. RI00CSIPSD-AK09-01 

& 

Shell Offshore, Inc. 

OCS Permit No. RI00CS/PSD-AK2010-01 

Noble Discoverer Drillship 

) 

) 

) 

) 

) OCS Appeal Nos. 11-02, 

) 11-03, 11-04 & 11-08 

) 

) 

) 

) 

) 

) 

) 

) 

) 

--------------------) 

[Decided January 12, 2012] 

ORDER DENYING REVIEW 

Before Environmental Appeals Judges Charles J. Sheehan, 

Kathie A. Stein and Anna L. Wolgast. 
IN RE SHELL GULF OF MEXICO, INC.

& SHELL OFFSHORE, INC.

OCS Appeal Nos. 11-02, 11-03, 11-04 & 11-08

ORDER DENYING REVIEW

Decided January 12, 2012

This decision addresses petitions for review that challenge two Outer

Continental Shelf (“OCS”) Prevention of Significant Deterioration (“PSD”) permits

(“Permits”) Region 10 (“Region”) of the U.S. Environmental Protection Agency

(“Agency”) issued to Shell Gulf of Mexico, Inc. and Shell Offshore, Inc. (collectively,

“Shell”). The Permits, issued on September 19, 2010, pursuant to section 328 of the

Clean Air Act (“CAA”), 42 U.S.C. § 7627, authorize Shell to “construct and operate the

Noble Discoverer drillship and its air emission units and to conduct other air pollutant

emitting activities” within Shell’s lease blocks in the Chukchi and Beaufort Seas off the

North Slope of Alaska. The Permits also provide for the use of an associated fleet of

support ships, including icebreakers, supply ships, and oil spill response vessels in

addition to the Discoverer. 

These two Permits are before the Board following the Region’s post-remand

proceedings. In the previous appeal, the Board denied review of one issue, but remanded

both permits in their entirety to the Region for further consideration of two issues: the

Region’s determination of when the drillship becomes an OCS source and the Region’s

analysis o 2f the impact of nitrogen dioxide (“NO ”) emissions on Alaska Native

“environmental justice” communities located in the affected areas. See In re Shell Gulf

of Mex. Inc., OCS Appeal Nos. 10-01 through 10-04 (EAB Dec. 30, 2010), 15 E.A.D. __.

Shortly thereafter, and at the Region’s request, the Board issued another decision

addressing four additional issues that it had not addressed in the December 2010 decision.

See In re Shell Gulf of Mex. Inc., OCS Appeal Nos. 10-01 through 10-04, at 14-19

(EAB Mar. 14, 2011), 15 E.A.D. __. 

The Board received four petitions for review of the Permits. Two were filed

by groups, one by the Native Village of Point Hope, Resisting Environmental

Destruction of Indigenous Lands (“REDOIL”), Alaska Wilderness League, Center for

Biological Diversity, Natural Resources Defense Council, Northern Alaska

Environmental Center, Ocean Conservancy, Oceana, Pacific Environment, Sierra Club,

and The Wilderness Society (collectively, “NVPH Petitioners”), and the other by the

Iñupiat Community of the Arctic Slope (“ICAS”) and the Alaska Eskimo Whaling

Commission (“AEWC”). AEWC later requested that it be allowed to withdraw from this

matter, a request the Board grants in today’s decision. ICAS, therefore, remains as sole

petitioner for that appeal. A third petition was filed by Mr. Daniel Lum. In addition, Ms.
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& SHELL OFFSHORE, INC.

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Donna Arvelo filed a document that the Board construed as a petition. Ms. Arvelo’s

petition, however, was filed late. The Board therefore dismisses it in today’s decision as

untimely.

The three remaining petitions collectively raise seven issues for review. Two

of the issues – a challenge to the Region’s OCS source determination and a challenge to

the Region’s environmental justice analysis – are the same issues the Board remanded in

its December 2010 decision. The Board’s scope of review is limited to issues the Board

remanded, issues raised in the previous appeals of these Permits but not addressed by the

Region, and changes to the Permits required by intervening changes in the law or made

during the remand period. Petitioners raise five new issues that arise from the remand

proceedings: (1) Did the Region clearly err in adopting Shell’s ambient air quality

analy 2sis? (2) Did the Region clearly err in determining that the 1-hour NO national

ambient air quality standard (“NAAQS”) would be met without separately determining

compliance 2 with the “maximum allowable concentration” of NO ? (3) Did the Region

clearly err in its ambient air exemption determination? (4) Did the Region abuse its

discretion in declining to include additional permit limitations on methane emissions?

(5) Did the Region clearly err or abuse its discretion in only providing 30 days to

comment on the concurrently issued draft Chukchi and Beaufort Permits during the

remand period?

Held: The Board denies review of the Permits. Petitioners have not met their burden of

demonstrating that review is warranted on any of the grounds presented.

(1) OCS Source Determination. The Board concludes that ICAS has failed to

demonstrate that the Region’s determination of when the Discoverer becomes, and ceases

to be, an OCS source is clearly erroneous. The Region’s determination of when the

Discoverer becomes, and ceases to be, an OCS source in the context of these Permits

shows that the Region adhered to the Board’s directions on remand and undertook a

cogent, well-reasoned analysis of the statutory and regulatory requirements for an OCS

source and reasonably applied that analysis to the Discoverer drillship. ICAS’s proposed

definition of the OCS source is not supported by the language of the statutes and the

regulation that define the OCS source. 

(2) Environmental Justice Analysis. The Board concludes that ICAS and Mr. Lum have

not demonstrated that the Region failed to satisfy its obligations to comply with

Executive Order 12898 and applicable Board precedent. The Region complied with the

Board’s instruction on remand and conducted a supplemental environmental justice

analysis that endeavored to include and analyze data that is germane to the environmental

justice issues raised during the comment period. In the several arguments they put forth

in their petitions, ICAS and Mr. Lum do not demonstrate how the Region’s responses to

comments are inadequate, overcome the particularly heavy burden a petitioner must meet

to demonstrate that review of the Region’s technical decisions is warranted, raise issues

within the Board’s limited scope of review on remand, or raise issues within the Board’s

jurisdiction. 
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(3) Ambient Air Quality Analysis. NVPH Petitioners contend that Shell’s ambient air

quality analysis was flawed in that it failed to conform to applicable Agency guidance.

Upon examination of the administrative record, the Board concludes that NVPH

Petitioners failed to raise this issue during the comment period. This issue, therefore, was

not preserved for review. 

2

(4) NO NAAQS Analysis. NVPH Petitioners assert that the Region violated section

165(a 2)(3) of the CAA by failing to require that Shell demonstrate that its NO emissions

will not cause pollution in excess of the 100 ppb maximum allowable concentration level.

Upon examination of the administrative record, the Board concludes that NVPH

Petitioners did not raise this specific issue in their comments on the draft permit. This

issue, therefore, was not preserved for review.

(5) Ambient Air Exemption Determination. The Board concludes that NVPH Petitioners

have not shown that the Region clearly erred in its decision to exempt the area within a

500 meter radius from the Discoverer – the area within the U.S. Coast Guard safety zone

– from the definition of “ambient air.” The Region, in its Response to Comments

document, provided a reasonable interpretation of the ambient air regulation and the

Agency’s longstanding interpretation of that regulation as applied in the OCS context. 

(6) Methane Emissions Permit Conditions. The Board concludes that the Region did not

abuse its discretion in declining to include additional permit conditions on methane

emissions, which would otherwise be necessary to ensure the enforceability of “potential

to emit” (“PTE”) limitations. Both Permits count all methane emissions from the drilling

mud system (“DMS”) operations (to the full extent of the sources’ PTE) towards the

Permits’ total allowable greenhouse gas emissions. Under these circumstances, ICAS’s

argument that the Permits must include conditions ensuring the enforceability of

limitations on a source’s PTE is misplaced, as the Permits do not contain owner requested

limits on methane emissions or otherwise limit the sources’ PTE from DMS operations.

Further, with regard to the bulk of greenhouse gas emissions, the Permits contain

enforceable permit conditions. 

(7) Public Comment Periods on Remand. The Board concludes that ICAS has failed to

demonstrate that the Region clearly erred or abused its discretion in only providing 30

days to comment on the concurrently issued draft Chukchi and Beaufort Permits during

the remand period. The Region provided the regulatory minimum comment period for

the draft permits, and ICAS does not point to any statutory or regulatory provision that

requires the Agency to provide a longer comment period when the Agency issues

concurrent permits. ICAS’s attempt to recalculate the length of the comment periods

based on an unexplained mathematical formula involving the number and lengths of other

comment periods is unconvincing. Furthermore, it is clear from the administrative record

that the Region appropriately balanced the conflicting considerations, which include the

need for expedited review of PSD permits, in deciding on the length of the comment

periods and in denying requests for longer periods.
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 NVPH Petitioners include Native Village of Point Hope, Resisting 1

Environmental Destruction of Indigenous Lands (“REDOIL”), Alaska Wilderness

League, Center for Biological Diversity, Natural Resources Defense Council, Northern

Alaska Environmental Center, Ocean Conservancy, Oceana, Pacific Environment, Sierra

Club, and The Wilderness Society.

 Initially the Alaska Eskimo Whaling Commission joined ICAS in filing the 2

petition for review. See Petition for Review (Oct. 24, 2011) (“ICAS Petition”). On

November 22, 2011, counsel for both entities filed a motion requesting that the Board

allow the Alaska Eskimo Whaling Commission to withdraw from the above-captioned

matters. See Motion of Petitioner Alaska Eskimo Whaling Commission to Withdraw

from These Proceedings (Nov. 22, 2011). The Board hereby grants Alaska Eskimo

Whaling Commission’s motion.

 NVPH Petitioners’ petition was designated as OCS Appeal No. 11-02, ICAS’s 3

petition was designated as OCS Appeal No. 11-03, and Mr. Lum’s petition was

designated as OCS Appeal No. 11-04.

Before Environmental Appeals Judges Charles J. Sheehan,

Kathie A. Stein and Anna L. Wolgast.

Opinion of the Board by Judge Stein:

I. Statement of the Case

A group of conservation petitioners (“NVPH Petitioners”), the 1

Iñupiat Community of the Arctic Slope (“ICAS”), and Mr. Daniel Lum

2

each petitioned the Environmental Appeals Board (“Board”) to review 3

two Clean Air Act (“CAA or “Act”) Outer Continental Shelf (“OCS”)

Prevention of Significant Deterioration (“PSD”) permits (“Permits”) that

Region 10 (“Region”) of the U.S. Environmental Protection Agency

(“EPA” or “Agency”) issued to Shell Gulf of Mexico, Inc. and Shell

Offshore, Inc. (collectively, “Shell”) on September 19, 2011. See OCS

PSD Permit to Construct, Permit Number R10OCS/PSD-AK-09-01

(Sept. 19, 2011) (“Chukchi Permit”) (Administrative Record (“A.R.”)

SSS-3); OCS PSD Permit to Construct, Permit Number R10OCS/PSDAK-2010-01 (Sept. 19, 2011) (“Beaufort Permit”) (A.R. SSS-2). The

Permits authorize Shell “to construct and operate the Noble Discoverer
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 The name of the drillship changed from the Frontier Discoverer to the Noble

4

Discoverer during the summer of 2010 due to a change in ownership. Supplemental

Statement of Basis for Proposed OCS PSD Permits Noble Discoverer Drillship 27

(July 6, 2011) (“Supp. Statement of Basis”) (A.R. QQQ-3). Although the Board referred

to the drillship as the Frontier Discoverer in all of the orders that addressed the 2010

Permits, to avoid confusion in the current proceedings, the Board will refer to the

drillship simply as the Discoverer.

 To date, the Board has published three orders related to permits Shell has 5

sought to conduct exploratory activities on the Arctic OCS, in addition to numerous

unpublished orders. 

In 2007, the Board issued an order denying review in part and remanding in

part two OCS minor source permits that Shell Offshore Inc. sought for two drilling

vessels to operate in the Beaufort Sea. In re Shell Offshore, Inc., 13 E.A.D. 357 (EAB

2007) [hereinafter Shell 2007]. In 2010, the Board issued an order denying review in part

and remanding the permits in the consolidated appeals of two OCS PSD permits that,

upon completion of remand proceedings, are now the subjects of the current appeals. See

In re Shell Gulf of Mex., Inc., OCS Appeal Nos. 10-01 through 10-04 (EAB Dec. 30,

2010), 15 E.A.D. ___ [hereinafter Shell 2010]. Upon a request from the Region, and in

the interests of administrative efficiency and judicial economy, the Board later decided

four additional issues to assist the Region in completing remand proceedings for the two

OCS PSD permits now before the Board. In re Shell Gulf of Mex., Inc., OCS Appeal

Nos. 10-01 through 10-04 (EAB Mar. 14, 2011), 15 E.A.D. ___ [hereinafter Shell 2011].

drillship and its air emission units and to conduct other air pollutant 4

emitting activities,” within Shell’s lease blocks in the Chukchi and

Beaufort Seas off the North Slope of Alaska. Chukchi Permit at 1;

Beaufort Permit at 1. The Permits also provide for the use of an

associated fleet of support ships, including icebreakers, supply ships, and

oil spill response vessels in addition to the Discoverer. See Chukchi

Permit at 11-13; Beaufort Permit at 13-15.

This is the second time that OCS PSD permits for proposed oil

exploration on Shell’s lease blocks within the Chukchi and Beaufort Seas

have come before the Board. In the previous consolidated appeals, 5

several citizens’ and conservation groups challenged the original OCS

PSD permits (“2010 Permits”) the Region had issued to Shell. Due to

circumstances that arose as a result of the April 2010 Deepwater Horizon

oil spill – both the suspension of drilling activities in the Arctic for the
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& SHELL OFFSHORE, INC.

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2010 drilling season and the initiation of a comprehensive industry-wide

review of offshore drilling safety and oil spill response capability by the

U.S. Department of the Interior (“DOI”) – the Board issued a decision

that only addressed three issues (those that were legal in nature) because

the analyses set forth in the documentation supporting the 2010 Permits

for those issues would unlikely be affected by any future requirements

or mandates that may have resulted from DOI’s review that was

underway at the time. In the Board’s December 2010 decision,

hereinafter referred to as Shell 2010, the Board remanded the 2010

Permits with specific findings on two of the three legal issues, denied

review of the third legal issue, and generally remanded the 2010 Permits

in their entirety as to all other issues in the petitions. See In re Shell Gulf

of Mex., Inc., OCS Appeal Nos. 10-01 through 10-04 (EAB Dec. 30,

2010), 15 E.A.D. ___ [hereinafter Shell 2010].

Upon completion of remand proceedings, the Region issued to

Shell the two Permits that are the subject of the present appeals. Both

the Region and Shell filed responses to the three petitions for review.

Petitioners thereafter each filed motions requesting leave to file reply

briefs, which are currently pending and which the Board addresses

below. See infra Section V. The Board did not hold oral argument. For

the reasons discussed below, the Board denies review of the Permits.

II. Issues

The Board has determined that the three petitions filed in this

case, collectively, present seven issues for review. The Board first

addresses the OCS source determination and the environmental justice

analysis, the two issues that the Board remanded in Shell 2010. The

Board then considers five new issues arising out of the remand

proceedings. The seven issues the Board must resolve here are:

A. Did the Region clearly err in determining when

the Discoverer becomes, and ceases to be, an

OCS source?
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B. Did the Region satisfy its obligation to consider

environmental justice under Executive Order 12898 and

comply with applicable Board precedent?

C. Did the Region clearly err in adopting Shell’s ambient

air quality analysis?

D. Did the Region clearly err in determining that the 1-

hour 2 nitrogen dioxide (“NO ”) national ambient air

quality standard (“NAAQS”) would be met without

separately determining compliance with the “maximum

allowable concentration” o 2f NO ? 

E. Did the Region clearly err in determining the ambient

air exemption?

F. Did the Region abuse its discretion in declining to

include additional permit limitations on methane

emissions?

G. Did the Region clearly err or abuse its discretion in only

providing thirty days to comment on the concurrently

issued draft Chukchi and Beaufort Permits during the

remand period?

III. Standard of Review

OCS PSD permits are governed by Title 40 of the Code of

Federal Regulations (“C.F.R.”), part 55, which in turn states that, when

processing OCS PSD permits, the procedural rules contained within

40 C.F.R. part 124 – which are used to issue PSD permits generally –

apply. 40 C.F.R. § 55.6(a)(3). Under part 124, the Board will not

ordinarily review a PSD permit unless it is based on a clearly erroneous

finding of fact or conclusion of law, or involves a matter of policy or

exercise of discretion that warrants review. 40 C.F.R. § 124.19(a);

Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,412 (May 19,
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1980). When analyzing PSD permits, the Board is cognizant of the

preamble to section 124.19, in which the Agency states that the Board’s

power of review “should be only sparingly exercised” and that “most

permit conditions should be finally determined at the [permit issuer’s]

level.” 45 Fed. Reg. at 33,412; accord In re Cardinal FG Co., 12 E.A.D.

153, 160 (EAB 2005). 

In this instance, Board review is further limited by the Board’s

decision in Shell 2010. See Shell 2010, slip op. at 82, 15 E.A.D. ___;

accord In re Knauf Fiber Glass GmbH, 9 E.A.D. 1, 7 (EAB 2000)

(“Knauf II”) (explaining that the scope of review for the PSD permit

issued upon completion of remand proceedings was expressly limited by

the previous Knauf decision to the two remanded issues and to permit

conditions modified during the remand period). The Board clearly stated

that, upon completion of remand proceedings, any petitions for review

of the Region’s permitting decisions “shall be limited to issues addressed

by the Region on remand and to issues otherwise raised in the petitions

before the Board in this proceeding but not addressed by the Region on

remand.” Shell 2010, slip op. at 82, 15 E.A.D. ___. Further, in the

current appeals, “[n]o new issues may be raised that could have been

raised, but were not raised,” in the previous appeals. Id.; accord Knauf

II, 9 E.A.D. at 7 (noting that issues raised outside of the appeal period

are considered untimely); see also In re Upper Blackstone Water

Pollution Abatement Dist., NPDES Appeal Nos. 10-09 through 10-12,

slip op. at 7-8 (Mar. 31, 2011), 15 E.A.D. ___ (citing cases where the

Board has declined to consider issues raised in later briefs that were not

raised in the initial petition for review), appeal docketed, No. 11-1474

(1st Cir. Apr. 29, 2011), appeal docketed sub nom. Conservation Law

Found. v. EPA, No. 11-1610 (1st Cir. May 27, 2011); In re Dominion

Energy Brayton Point, LLC, 13 E.A.D. 407, 439 (EAB 2007) (same),

appeal rendered moot by settlement, No. 07-2059 (4th Cir. Dec. 17,

2007). Nevertheless, any changes to the Permits required by intervening

changes in the law or any modifications to permit conditions made

during the remand period are excepted from the limitation on the scope

of review established in Shell 2010 because such conditions have not
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2 For example, NVPH Petitioners challenge the Region’s 1-hour NO NAAQS 6

determination, which is based on a standard that was finalized but not yet in effect when

the Region issued the 2010 Permits. See NVPH Petition at 10-26. In addition, ICAS

challenges a new permit condition establishing the ambient air boundary at 500 meters

from the Discoverer. ICAS Petition at 27-30.

been previously subject to the appeal process. See, e.g., Upper 6

Blackstone, slip op. at 7-8, 15 E.A.D. ___; Knauf II, 9 E.A.D. at 7. 

The petitioner bears the burden of demonstrating that review is

warranted. See 40 C.F.R. § 124.19. To meet this burden, the petitioner

must satisfy threshold pleading requirements including timeliness,

standing, and issue preservation. See id.; In re Russell City Energy Ctr.,

LLC, PSD Appeal Nos. 10-01 through 10-05, slip op. at 12 (EAB

Nov. 18, 2010), 15 E.A.D. ___, appeal docketed sub nom. Chabot-Las

Positas Cmty. Coll. Dist. v. EPA, No. 10-73870 (9th Cir. Dec. 20, 2010)

(“Russell City II”); In re BP Cherry Point, 12 E.A.D. 209, 216

(EAB 2005). For example, a petitioner seeking review must file an

appeal of the permit decision within thirty days of service of the

decision, and must have filed comments on the draft permit or

participated in the public hearing. 40 C.F.R. § 124.19(a); accord Russell

City II, slip op. at 12, 15 E.A.D. ___. In addition, a petitioner must not

only specify objections to the permit, but also explain why the permit

issuer’s previous response to those objections is clearly erroneous or

otherwise warrants review. See 40 C.F.R. § 124.13 (requiring that all

persons who believe a condition of a draft permit is inappropriate “must

raise all reasonably ascertainable issues and submit all reasonably

available arguments supporting their position by the close of the public

comment period”); id. § 124.19(a) (stating that a petition for review to

the Board “shall include * * * a demonstration that any issues being

raised were raised during the public comment period”); see also In re

Avenal Power Center, LLC, PSD Appeal Nos. 11-02 through 11-05,

slip op. at 4-5 (EAB Aug. 18, 2011), 15 E.A.D. ___, appeals docketed

sub nom. Sierra Club v. EPA, No. 11-73342 (9th Cir. Nov. 3, 2011), El

Pueblo Para el Aire y Agua Limpio v. EPA, No. 11-73356 (9th Cir.

Nov. 4, 2011); BP Cherry Point, 12 E.A.D. at 216-17. The petitioner’s
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burden is particularly heavy in cases where a petitioner seeks review of

an issue that is fundamentally technical or scientific in nature, as the

Board will typically defer to a permit issuer’s technical expertise and

experience on such matters if the permit issuer adequately explains its

rationale and supports its reasoning in the administrative record. See,

e.g., In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 510

(EAB 2006); In re Peabody W. Coal Co., 12 E.A.D. 22, 33-34

(EAB 2005); In re NE Hub Partners, L.P., 7 E.A.D. 561, 567-68 (EAB

1998), review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862

(3rd Cir. 1999);see also In re Ash Grove Cement Co., 7 E.A.D. 387, 404

(EAB 1997).

When evaluating a permit appeal, the Board examines the

administrative record prepared in support of the permit to determine

whether the permit issuer exercised his or her “considered judgment.”

Ash Grove Cement, 7 E.A.D. at 417-18; accord In re Cape Wind

Assocs., LLC, OCS Appeal No. 11-01, slip op. at 5 (EAB May 20, 2011),

15 E.A.D. ___; In re GSX Servs. Of S.C., Inc., 4 E.A.D. 451, 454

(EAB 1992). The permit issuer must articulate with reasonable clarity

the reasons supporting its conclusion and the significance of the crucial

facts it relied upon when reaching its conclusion. E.g., In re Shell

Offshore, Inc., 13 E.A.D. 357, 386 (EAB 2007) [hereinafter Shell 2007]

(citing In re Carolina Light & Power Co., 1 E.A.D. 448, 451 (Act’g

Adm’r 1978)); Ash Grove Cement, 7 E.A.D. at 417 (same). As a whole,

the record must demonstrate that the permit issuer “duly considered the

issues raised in the comments and [that] the approach ultimately adopted

by the [permit issuer] is rational in light of all information in the record.”

In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 342

(EAB 2005); accord In re City of Moscow, 10 E.A.D. 135, 142

(EAB 2001); NE Hub, 7 E.A.D. at 568.

Finally, the Board endeavors to construe liberally objections

raised by parties unrepresented by counsel (i.e., those proceeding pro se),

so as to fairly identify the substance of the arguments being raised. In re

Sutter Power Plant, 8 E.A.D. 680, 687 & n.9 (EAB 1999); accord

Russell City II, slip op. at 15, 15 E.A.D. ___. While the Board does not
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 All of the groups constituting the NVPH Petitioners participated in the 7

appeals of the 2010 Permits, with the exception of The Wilderness Society, which joins

the NVPH Petitioners in its current appeal.

expect such petitions to contain sophisticated legal arguments or to

utilize precise technical or legal terms, the Board nonetheless expects

such petitions “to articulate some supportable reason or reasons as to

why the permitting authority erred or why review is otherwise

warranted.” Sutter, 8 E.A.D. at 687-88 (citing In re Beckman Prod.

Servs., 5 E.A.D. 10, 19 (EAB 1994)).

IV. Summary of Decision

For all of the reasons stated below, the Board concludes that:

(a) the Region did not clearly err in determining when the Discoverer

becomes, and ceases to be, an OCS source; (b) the Region’s

supplemental environmental justice analysis and related conclusions

satisfy its obligation to comply with Executive Order 12898 and

applicable Board precedent; (c) the issue of the Region’s adoption of

Shell’s ambient air quality analysis was not properly raised below;

(d) the issue of the Region’s determination that Shell would meet the 1-

hour NO2 NAAQS without separately determining compliance with the

“maximum 2 allowable concentration” of NO was not properly raised

below; (e) the Region did not clearly err in determining the ambient air

exemption; (f) the Region did not abuse its discretion in declining to

include additional permit limitations on methane emissions; and (g) the

Region did not clearly err or abuse its discretion in providing thirty days

to comment on the concurrently issued draft Chukchi and Beaufort

Permits. Accordingly, the Board denies review of the Permits.

V. Relevant Factual and Procedural History

The Region issued the 2010 Permits to Shell in March and April

of that year. Several groups filed petitions for review, and in December 7

2010, the Board remanded the 2010 Permits with directions for the

Region to further consider two issues: (1) the determination of when the
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See In re Shell Gulf of Mex., Inc., OCS Appeal Nos. 10-01 through 10-04, at 2 8

(EAB Feb. 10, 2011) (Order on Motions for Reconsideration and/or Clarification)

(denying the Region’s and Shell’s requests for reconsideration, but agreeing to the

Region’s request to decide four issues not addressed in the remand order so as to provide

additional guidance for the Region’s permit decisions on remand).

Discoverer becomes an OCS source subject to regulation under CAA

section 328, and (2) the Region’s environmental justice analysis. See

Shell 2010, slip op. at 55, 62-63, 78-81, 15 E.A.D. __. The Board denied

review of a challenge to the Region’s decision not to apply best available

control technology (“BACT”) to the associated fleet of support vessels

and remanded the 2010 Permits in their entirety as to all other issues

raised in the petitions. See id. at 38, 82, 15 E.A.D. at __. The Board’s

December 2010 order contains a detailed accounting of the procedural

and factual history leading up to the remand of the 2010 Permits. Id.

at 11-19, 15 E.A.D. at __. In March 2011, in response to motions for

reconsideration and/or clarification from Shell and the Region, the Board

issued an order addressing four additional issues. In re Shell Gulf of 8

Mex., Inc., OCS Appeal Nos. 10-01 through 10-04, slip op. at 14-19

(EAB Mar. 14, 2011), 15 E.A.D. __ [hereinafter Shell 2011]. The Board

denied review of three of the four issues but declined to sustain the

Region’s source impacts analysis for particulate matter with a diameter

of 2.5 2.5 micrometers or less (“PM ”) because the administrative record

2.5 lacked any assessment of whether emissions of PM precursors could
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In declining to exercise review of the other three issues, the Board concluded 9

that: 

(1) based on the determination of when the Discoverer becomes an

OCS source, Icebreaker #2 is not part of the OCS source when

setting and retrieving the Discoverer’s anchors; 

(2) the Region did not clearly err when, for purposes of determining

best available control technology (“BACT”) limitations, the Region

assumed that all particulate matter emissions - PM (particulate

mat 2.5 ter), PM (particulate matter with a diameter of 2.5 micrometers

or less), and PM10 (particulate matter with a diameter of ten

m 2.5 icrometers or less) - were PM emissions when it conducted a

BACT analysis, and; 

(3) the Region did not clearly err when it declined to include

emissions from unplanned operations of the oil spill and response

vessels in the potential to emit analysis.

Shell 2011, slip op. at 8-14, 20-40, 15 E.A.D. __. 

See Proposed Outer Continental Shelf Prevention of Significant Deterioration 10

Permit to Construct, Permit No. R10OCS/PSD-AK-2010-01 (July 6, 2011) (“Proposed

Beaufort Permit”) (A.R. QQQ-1); Proposed Outer Continental Shelf Prevention of

Significant Deterioration Permit to Construct, Permit No. R10OCS/PSD-AK-09-01

(July 6, 2011) (“Proposed Chukchi Permit”) (A.R. QQQ-2); Supp. Statement of Basis.

potentially 2.5 contribute to cumulative impacts as secondary PM . Id.

9

at 14-19, 15 E.A.D. at __.

Upon completion of remand proceedings, the Region issued two

proposed OCS PSD permits for Shell’s operations in the Chukchi and

Beaufort Seas on July 6, 2011, accompanied by a single supplemental

statement of basis. The Region solicited public comments on both 10

proposed OCS PSD permits from July 6, 2011, through August 5, 2011,

and held an informational meeting and a public hearing in Barrow,

Alaska, on August 4, 2011. Supp. Statement of Basis at 12-14.

Petitioners submitted comments on the proposed permits during this
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See Email from Daniel Lum to Suzanne Skadowski, EPA Region 10 (Aug. 3, 11

2011 1:20 pmPDT) (“LumComments”) (A.R. RRR-24); ICAS, Alaska Eskimo Whaling

Commission, and North Slope Borough Commentsto EPA Region 10 Re: Revised Draft

Air Permits for Shell’s Discoverer Exploration in Beaufort and Chukchi Seas (Aug. 5,

2011) (“ICAS Comments”); Alaska Wilderness League, Audubon Alaska, Center for

Biological Diversity, Defenders of Wildlife, Greenpeace, Earthjustice, National Wildlife

Federation, Native Village of Point Hope, Natural Resources Defense Council, Northern

Alaska Environmental Center, Ocean Conservancy, Oceana, Pacific Environment,

REDOIL, Sierra Club, The Wilderness Society, and World Wildlife Fund Comments Re:

Revised Draft Air Permits for Shell’s Proposed Oil and Gas Exploration Drilling in the

Beaufort Sea and Chukchi Sea, Alaska (Aug. 5, 2011) (A.R. RRR-30) (“NVPH

Comments”).

 On October 25, 2011, the Board received a request from Donna Arvelo

12

seeking information on how to file a petition for review. Nine days later, on November 3,

2011, the Board received a document attached to an email from Ms. Arvelo. See Email

from Donna Arvelo to Eurika Durr, Clerk of the Board, Environmental Appeals Board,

U.S. EPA, attach. 1 (Nov. 3, 2011, 10:38 am EDT). The Board construed this

November 3 submission as a petition for review and designated it as OCS Appeal No. 11-

08. Because this petition was filed after October 24, 2011, the date by which petitions

for review of these Permits were due, the Board hereby dismisses Ms. Arvelo’s petition

as untimely. See, e.g., In re Envotech, L.P., 6 E.A.D. 260, 266 (EAB 1996); In re

Beckman Prod. Servs., Inc., 5 E.A.D. 10, 15-16 (EAB 1994); see also Environmental

Appeals Board, U.S. EPA, Practice Manual 10-12 (Sept. 2010), available at

http://www.epa.gov/eab (click on EAB Guidance Documents) (discussing general filing

requirements including timeliness of submissions); Order Authorizing Electronic Filing

in Proceedings Before the Environmental Appeals Board not Governed by 40 C.F.R.

Part 22, at 3 (Jan. 28, 2010), available at http://www.epa.gov/eab (click on Standing

Orders) (authorizing electronic filing through the Central Data Exchange (“CDX”) and

stating that “[s]ending a document directly to the Board via e-mail, rather than through

the CDX portal, does not constitute electronic filing unless otherwise specified by the

Board.”). The Board notes that Ms. Arvelo’s informational request on filing appeals was

(continued...)

time. On September 19, 2011, the Region issued the final Permits

11

along with a single supplemental response to comments document. See

Beaufort Permit; Chukchi Permit; Supplemental Response to Comments

for OCS PSD Permits Noble Discoverer Drillship (Sept. 19, 2011)

(“Supp. RTC”) (A.R. SSS-4).

The Board received three timely petitions seeking review of the

Permits. The Region and Shell filed responses to the petitions on 12
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(...continued) 12

also received after the appeal deadline.

Mr. Lum also requested oral argument in an email dated November 8, 2011, 13

but the Board had already denied oral argument in a previous order. See Order Denying

Requests for Status Conference and Oral Argument and Establishing Filing Deadline

(Nov. 4, 2011).

 The Board recently issued a standing order in which it adopted certain 14

procedures intended to facilitate expeditiousresolution of petitions requesting review of

permits issued under the CAA newsource review (“NSR”) program, including OCS PSD

permits. See Order Governing Petitions for Reviewof Clean Air Act NewSource Review

Permits 1 n.2 (EAB Apr. 19, 2011) (“Standing Order”), available at

http://www.epa.gov/eab (click on Standing Orders); see also 40 C.F.R. § 124.19. Among

other things, theBoard will apply a presumption against the filing of reply briefs and surreplies in NSR appeals. See Standing Order at 3. However, the Board maintains

discretion to modify these procedures as appropriate on a case-specific basis. Id. at 6.

November 16, 2011. Petitioners each filed motions requesting leave to

file reply briefs and attached their proposed reply briefs. A petitioner 13

seeking leave to file a reply brief in an appeal of a new source review

(“NSR”) permit issued pursuant to the CAA, such as the OCS PSD

Permits at issue here, must state “with particularity the arguments to

which the Petitioner seeks to respond and the reasons the Petitioner

believes it is both necessary to file a reply to those arguments * * * and

how those reasons overcome the presumption in the Standing Order.”14

Order Denying Requests for Status Conference and Oral Argument and

Establishing Filing Deadline 6 (Nov. 4, 2011) (“November Order”)

(citing Order Governing Petitions for Review of Clean Air Act New

Source Review Permits 3 (EAB Apr. 19, 2011) (“Standing Order”),

available at http://www.epa.gov/eab (click on Standing Orders)). 

Upon consideration of Petitioners’ motions to file reply briefs

and proposed reply briefs, the Board finds that only two select issues

within NVPH Petitioners’ and ICAS’s reply briefs meet the high

threshold required to overcome the presumption against filing reply

briefs that the Board applies in NSR appeals. See Standing Order at 3;

see also November Order at 5-6. Specifically, NVPH Petitioners assert
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See, e.g., In re ArcelorMittal Cleveland Inc., NPDES Appeal No. 11-01, at 1- 15

3 (EAB Dec. 9, 2011) (Order Granting in Part EPA’s Motion to File Surreply, Denying

Petitioner’s Request to Provide Additional Information, and Granting Oral Argument)

(granting in part permit issuer’s request to file a sur-reply but limiting the scope to a

subset of issues raised in permit issuer’s motion requesting leave to file sur-reply). 

that the Region offers a new rationale and cites new authority in its

response brief to justify the 500-meter ambient air boundary. See

Petitioners Native Village of Point Hope et al. Motion for Leave to File

Reply Brief 3-5 (Nov. 23, 2011); Reply to Responses to Petition for

Review Submitted by Native Village of Point Hope et al. 2-7 (Nov. 23,

2011) (“NVPH Reply”). Similarly, ICAS asserts that the Region relies

on new information in its response brief that was not available in the

supplemental response to comments regarding whether the methane

emissions limit is practically enforceable. Motion for Leave to File

Reply Brief in Support of ICAS’s Petition for Review 2 (Nov. 23, 2011);

[Proposed] Reply Brief in Support of ICAS’s Petition for Review 3-4

(Nov. 23, 2011) (“ICAS Reply”). 

The Board concludes that these two select issues that NVPH

Petitioners and ICAS raise meet the high threshold required to overcome

the Board’s stated presumption against the filing of reply briefs in an

NSR appeal. In particular, these two issues could not be raised prior to 15

the Region’s response as asserted by petitioners because the respective

rationales the Region cites in its response do not appear in the

administrative record. Furthermore, a new explanation or rationale for

the Region’s permitting decisions that appears for the first time in the

Region’s response has the potential to significantly impact the outcome

of the Board’s decision on that issue, and the Board has historically

granted parties’ motions to file replies or sur-replies when new

arguments are raised for the first time in opposing briefs. 

Accordingly, NVPH Petitioners’ motion for leave to file a reply

brief is granted in part. In reaching its conclusions set forth in this order,

the Board has considered the portion of NVPH Petitioners’ reply brief

that addresses the Region’s response regarding the 500-meter ambient air
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The Board, in addressing the relationship between the OCS source and the 16

PSD permitting requirements, has held that after EPA has identified the existence of an

OCS source, EPA must next “determin[e] the scope of the ‘stationary source’ for PSD

purposes.” Shell 2010, slip op. at 27, 15 E.A.D. ___ (quoting In re Shell Offshore, Inc.,

13 E.A.D. 357, 380 (EAB 2007) (“Shell 2007”)). Thus, the “stationary source” remains

the relevant unit of analysis for determining PSD applicability in the offshore context.

See Shell 2010, slip op. at 27, 15 E.A.D. ___; Shell 2007, 13 E.A.D. at 380-81. In this

instance, the Region has established that the OCS Source, the Discoverer, is the

(continued...)

boundary. See NVPH Reply at 2-7. ICAS’s motion for leave to file a

reply brief is also granted in part, and in reaching its conclusions the

Board has considered the portion of ICAS’s reply brief that addresses the

Region’s reliance on new information to support the Region’s permiting

decisions for methane emissions. See ICAS Reply at 3-4. The Board

denies NVPH Petitioners’ and ICAS’s motions for leave to file a reply

brief with respect to all other issues. The Board denies Mr. Lum’s

motion for leave to file a reply brief. 

The Board analyzes the parties’ arguments and sets forth its

determinations below. 

VI. ANALYSIS

A. ICAS Has Not Demonstrated That the Region’s Determination of 

 When the “Discoverer” Becomes, and Ceases to Be, an OCS Source

 is Clearly Erroneous

The determination of when the Discoverer becomes, and ceases

to be, an OCS source is a foundational element of the Permits that

dictates when CAA section 328, 42 U.S.C. § 7627, applies to, and thus

regulates air pollution from, the Discoverer. As the Board noted in the

appeals of the 2010 Permits, the determination of when the Discoverer

becomes, and ceases to be, an OCS source is antecedent to almost every

decision the Region must make in these OCS PSD permit proceedings,

and because it is an issue of first impression, the Board is obliged to

carefully examine when the Discoverer becomes an OCS source. Shell

16
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(...continued) 16

stationary source. Shell 2010, slip op. at 45 n.52, 15 E.A.D. (internal citations omitted).

2010, slip op. at 39, 15 E.A.D. ___; In re Shell Gulf of Mex., Inc., OCS

Appeal Nos. 10-01 through 10-04, at 21, 25 (EAB Feb. 10, 2011) (Order

on Motions for Reconsideration and/or Clarification) (“Clarification

Order”). 

ICAS challenges the Region’s permitting decisions on this issue,

arguing that the OCS source definition contained in the Permits is clearly

erroneous based on the Region’s misapplication of the regulatory and

statutory authorities that define an OCS source, particularly the

requirement that the Discoverer be located at an authorized drill site to

become an OCS source. The Region argues that the OCS source

definition in the Permits gives meaning to all three criteria present in the

EPA-promulgated regulation that defines an OCS source and further

maintains that the OCS source definition in the Permits is reasonable in

the context of the statutory authorities that contribute to the OCS source

definition. The question the Board must resolve is: did the Region

reasonably interpret and apply the statutory and regulatory authorities

that define an OCS source in these Permits and adequately support its

permitting decisions in the administrative record? 

Before addressing the parties’ arguments in detail, a brief review

of the following background information is warranted: (a) the statutory

and regulatory authorities that define the OCS source; (b) the Board’s

remand of the OCS source determination in Shell 2010, and; (c) the new

mooring process developed for the Discoverer on remand that in turn

must be assessed in light of the OCS source definition in the new

Permits. 
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1. Statutory Authorities and Factual History

Section 328 of the CAA, 42 U.S.C. § 7627, establishes air

pollution controls that require OCS sources “to attain and maintain

Federal and State ambient air quality standards” and to comply with the

PSD program. The Act defines an OCS source as follows:

The terms “Outer Continental Shelf source” and “OCS

source” include any equipment, activity, or facility

which --

(i) emits or has the potential to emit any air pollutant,

(ii) is regulated or authorized under the Outer

Continental Shelf Lands Act [43 U.S.C. § 1331 et seq.],

and

(iii) is located on the Outer Continental Shelf or in or on

waters above the Outer Continental Shelf.

Such activities include, but are not limited to, platform

and drill ship exploration, construction, development,

production, processing, and transportation. For

purposes of this subsection, emissions from any vessel

servicing or associated with an OCS source, including

emissions while at the OCS source or en route to or

from the OCS source within 25 miles of the OCS

source, shall be considered direct emissions from the

OCS source.

CAA § 328(a)(4)(C), 42 U.S.C. § 7627(a)(4)(C). The regulations EPA

promulgated to implement CAA section 328 define an OCS source by

first incorporating the language from sections (i), (ii), and (iii) of

section 328, above, and then adding:

This definition shall include vessels only when they are:
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 In Shell 2010, the Region initially proposed two alternative definitions of the 17

OCS source, and after receiving public comments on both alternatives, ultimately decided

on the following definition of the OCS source for the 2010 Permits:

For the purpose of this Permit, the Discoverer is an OCS source

(continued...)

(1) Permanently or temporarily attached to the seabed

and erected thereon and used for the purposes of

exploring, developing or producing resources therefrom,

within the meaning of section 4(a)(1) of OCSLA * * * ;

or

(2) Physically attached to an OCS facility, in which case

only the stationary source aspects of the vessel will be

regulated.

40 C.F.R. § 55.2. Section 55.2 references section 4(a)(1) of the Outer

Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1333(a)(1), which

states in relevant part:

The Constitution and laws and civil and political

jurisdiction of the United States are extended to the

subsoil and seabed of the outer Continental Shelf and to

all artificial islands, and all installations and other

devices permanently or temporarily attached to the

seabed, which may be erected thereon for the purpose

of exploring for, developing, or producing resources

therefrom * * * .

OCSLA § 4(a)(1), 43 U.S.C. § 1333(a)(1) (emphasis added). Taken

together, the Board looks to these authorities when evaluating an OCS

PSD permit’s definition of the OCS source.

The Board remanded the 2010 Permits to the Region because the

Region’s rationale for defining the OCS source was not adequately

explained or supported by the record. See Shell 2010, slip op. at 44-55, 17
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(...continued) 17

between the time the Discoverer is declared by the Discoverer’s onsite company representative to be secure and stable in a position

ready to commence exploratory activity at the drill site until the

Discoverer’s on-site company representative declares that, due to

retrieval of anchors or disconnection of its anchors, it is no longer

sufficiently stable to conduct exploratory activity at the drill

site * * * .

OCS PSD Permit to Construct, Permit No. R10OCS/PSD-AK-09-01 at 5 (Mar. 31, 2010)

(“2010 Chukchi Permit”) (A.R. L-1); OCS PSD Permit to Construct, Permit

No.R10OCS/PSD-AK-2010-01 at 14 (Apr. 9, 2010) (“2010 Beaufort Permit”) (A.R. PP2). 

Throughout the development, issuance, and appeals of the 2010 Permits, 18

Shell consistently maintained that the Discoverer would not be “secure and stable in a

position ready to commence exploratory activity” until all eight of Discoverer’s anchors

were on the seabed. See Shell 2010, slip op. at 56 & n.64; id. at 59-61 & n.66. The

Region also consistently maintained that it disagreed with Shell, and the Region

repeatedly stated its belief that the Discoverer could be “secure and stable in a position

ready to commence exploratory activity” with less than eight anchors on the seabed. Id.

at 56, 60-61.

15 E.A.D. ___. The Board explained that the Region neither provided

a cohesive explanation for how it interpreted the “erected thereon” and

“used for the purpose of exploring, developing, or producing resources

therefrom” criteria in 40 C.F.R. § 55.2 to mean “secure and stable in a

position to commence exploratory activity,” nor analyzed how its

interpretation of 40 C.F.R. § 55.2 was informed by the terms of CAA

§ 328 or OCSLA § 4(a)(1). See id. at 45-49. In addition, the Board held

that the administrative record did not support the Region’s permitting

decision because the Region’s OCS source definition resulted in a de

facto “eight-anchors-down” requirement. Despite the Region’s

18

disagreement with Shell regarding how many anchors were required to

be on the seabed for the Discoverer to become an OCS source, Shell’s

on-site company representative nonetheless would ultimately determine

when the Discoverer became “secure and stable in a position ready to

commence exploratory activity,” and thus subject to regulation under

CAA section 328. As a result, the Board also held that the OCS source
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 The Mooring Process Guidelines note that “[u]nlike most offshore drilling 19

rigs, during sea transit the Noble Discoverer mooring wires are not rigged or connected

to the anchors[;] [the anchors] are transported on the anchor handling tug supply vessel

(AHTS) and can be positioned prior to arrival” at Shell locations in the Chukchi and

Beaufort Seas. Mooring Process Guidelines at 4. 

 The AHTS vessel will be either Icebreaker #1 or Icebreaker #2. See Supp. 20

Statement of Basis at 22; see also Supp. RTC at 22 (noting that both icebreakers contain

both selective catalytic reduction (“SCR”) and oxidation catalyst (“OxyCat”) controls).

Hereafter, the Board refers to the AHTS vessel simply as the icebreaker. 

 The icebreaker will then sequentially deploy the Discoverer’s mooring lines 21

for connection to the pre-laid anchors, and after four lines are connected, the Discoverer

will retrieve the ship’s anchor before the icebreaker connects the Discoverer’s mooring

lines to the remaining four anchors. Mooring Process Guidelines at 12. 

definition in the 2010 Permits represented an impermissible delegation

to Shell of the Region’s authority to determine when the Discoverer was

subject to regulation under CAA section 328. See id. at 55-63. 

During the remand proceedings, Shell developed a new mooring

process for the Discoverer and coordinated with the Region to

considerably alter the OCS source definition in these Permits. See

Operations Guideline: Mooring Process for the Noble Discoverer

Drillship (Apr. 21, 2011) (“Mooring Process Guidelines”) (A.R. AAA-2

& CCC-298). In brief, the new mooring process calls for an anchor

handling tug supply (“AHTS”) vessel to pre-lay Discoverer’s eight

anchors at a drill site and mark the position of each anchor with a 19

surface buoy. Id. at 10. The Discoverer will proceed under its own 20

power to approximately one mile away from the pre-laid anchor buoy

pattern, shut down its propulsion engines, and from there, the icebreaker

will tow the Discoverer the remaining mile to the drilling position center

of the buoy pattern at the drill site. Id. at 11. The Discoverer will then

deploy the ship’s anchor to hold the Discoverer’s position, and it is at

this point the Discoverer will become an OCS source. Based on this 21

new mooring process, the Permits define the OCS source as follows:

For the purpose of this permit:
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 During the de-anchoring process the icebreaker will assist the Discoverer in 22

retrieving its mooring lines sequentially, and after the operation is carried out for four of

the anchors, the Discoverer ship’s anchor will be deployed to provide continued stability

before the icebreaker proceeds to assist the Discoverer in disconnecting from the

remaining four anchors. See Email from Mark Schindler, Octane, to Doug Hardesty,

EPA, attach. 1 (May 27, 2011, 4:32 p.m. PDT) (providing supplemental page 12.1 to the

Mooring Process Guidelines that describes drillship disconnection and departure

procedures) (A.R. CCC-340). Thus, the ship’s anchor will be the last anchor to be

removed from the seabed. 

a. The Discoverer is an “OCS Source” at

any time the Discoverer is attached to

the seabed at a drill site by at least one

anchor; and

b. A drill site is any location at which

Shell is authorized to operate under

this permit and for which Shell has

received from the [Bureau of Ocean

Energy Management, Regulation and

Enforcement] (BOEMRE) an

authorization to drill.

Chukchi Permit at 13; Beaufort Permit at 16. During de-anchoring, the

Discoverer would remain an OCS source while its mooring lines were

disconnected from all eight anchors and would cease to be an OCS

source only after the Discoverer ship’s anchor is raised. See Email

22

from Mark Schindler, Octane, to Doug Hardesty, EPA, attach. 1

(May 27, 2011, 4:32 p.m. PDT) (providing supplemental page 12.1 to the

Mooring Process Guidelines that describes drillship disconnection and

departure procedures) (A.R. CCC-340). 

With this framework in mind, the Board now turns its attention

to the arguments presented in these appeals.
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 The Region explained in the response to comments for the 2010 Permits that 23

the term “Associated Fleet” refers to the vessels supporting the Discoverer’s operations

that may be operating within twenty-five miles of the Discoverer “while the Discoverer

is an OCS source,” and explained that the Associated Fleet included, among other things,

the icebreaker and the anchor handler/icebreaker. Response to Comments for OCS PSD

Permit to Construct, Permit No. R10OCS/PSD-AK-09-01 at 7 n.3 (Mar. 31, 2010)

(emphasis added) (“2010 Chukchi RTC”) (A.R. L-2).

 As noted earlier in this decision, the Board clearly stated in its December 24

2010 remand order that any party filing a petition for review of the Region’s final permit

decisions issued upon completion of remand proceedings could not raise any new issues

(continued...)

2. Both the Region’s Interpretation of the OCS Source 

 Definition and the Region’s Application of the OCS Source

 Definition to the “Discoverer” Are Reasonable 

At the outset, ICAS’s petition for review of the OCS source

definition acknowledges ICAS’s main underlying concern – that

emissions from the icebreaker that will pre-lay the Discoverer’s anchors

are not captured in Shell’s potential to emit analysis because the activity

will occur when the Discoverer is not an OCS source. ICAS Petition

at 11-12; see also Clarification Order at 21-22 (explaining that the

“predicate determination of when the OCS source exists” governs

“which emissions from the Associated Fleet must be included in the air

23

quality impacts analysis and which emissions are wholly unregulated by

the OCS PSD permits”). ICAS refers to the icebreaker’s emissions that

will occur when it pre-lays the Discoverer’s anchors as “classic preconstruction emissions.” ICAS Petition at 11. However, as the Board

noted in its February 2011 order that addressed motions requesting the

Board to reconsider and/or clarify certain aspects of the December 2010

remand order, “no party has argued that any of the icebreaker or anchor

handler emissions must be included within the air quality impacts

analysis pursuant to CAA § 165(a)(3), 42 U.S.C. § 7475(a)(3), as

‘emissions from construction’ of the stationary source.” Clarification

Order at 22 n.15 (citations omitted). The Board continued that it would

consider the issues pertaining to the air quality impacts analysis only “as

framed by the parties in this case.” Id. Although ICAS does not 24
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(...continued) 24

“that could have been raised, but were not raised, in the present appeals.” Shell 2010,

slip op. at 82, 15 E.A.D. ___. 

 As noted above, the interpretation of the “erected thereon” criterion in 25

40 C.F.R. § 55.2 proved pivotal in the appeals of the 2010 Permits.

directly assert that emissions resulting from the icebreaker pre-laying the

Discoverer’s anchors should be included in the air quality impacts

analysis as construction emissions, ICAS’s arguments with respect to the

OCS source definition are all ultimately focused on obtaining specific

relief – the inclusion of the icebreaker’s emissions that will occur when

it pre-lays the Discoverer’s anchors in the air quality impacts analyses

that must accompany these Permits. 

Both the Region and ICAS stipulate that with respect to

determining when the Discoverer becomes an OCS source, for the

purposes of 40 C.F.R. § 55.2, the Discoverer is “temporarily attached to

the seabed” when one anchor is deployed, and the Discoverer’s status as

a drillship fulfills the “used for the purposes of exploring, developing or

producing resources” requirement in section 55.2. See ICAS Petition

at 11, 13 & n.5; Supp. Statement of Basis at 22-24; Supp. RTC at 17.

Thus, the fulcrum of the parties’ disagreement in large part remains the

interpretation of the “erected thereon” criterion in 40 C.F.R. § 55.2. 25

ICAS argues that the Region’s definition of the OCS source in

the Permits constitutes clear error. In support of its argument, ICAS

asserts that the Region wrongly concludes that the regulatory definition

of OCS source and section 4(a)(1) of OCSLA, 43 U.S.C. § 1333(a)(1),

contemplate more than attachment to the seabed. ICAS Petition at 11

(asserting that drillships “are erected onshore or at port before they ever

set sail”); id. at 12-14 (disputing the Region’s interpretation of “erected

thereon” as being geographically specific to a drill site). To cure the

Region’s error in determining when the Discoverer becomes an OCS

source, which ICAS asserts, among other things, leads to irrational

results, ICAS counters that the Discoverer should be considered an OCS

source whenever it drops an anchor on one of Shell’s lease blocks
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 ICAS does not acknowledge the Region’s statements in the supplemental 26

statement of basis that appear to directly address ICAS’s concerns regarding the future

application of the OCS source definition to different types of exploration equipment, such

as drilling platforms. See ICAS Petition at 14. The Region explains:

In reaching this conclusion, Region 10 notes that vessels used for oil

exploration and production (not to mention OCS vessels used for

other purposes) vary greatly in configuration. Therefore,

Region 10’s proposal in this case that the Discover [sic] is an OCS

source as defined in 40 C.F.R. § 55.2 when attached to the seabed by

a single anchor at a drill site does not necessarily resolve when other

types of vessels or drill rigs become OCS sources, an issue that will

vary to some extent depending on the factual differences in the

equipment used to carry out the OCS activity and the particular

project.

Supp. Statement of Basis at 25; see also Shell 2010, slip op. at 56-57, 15 E.A.D. ___

(noting that once a permit issuer receives an OCS PSD application there is sufficient

notice of the proposed equipment configuration and OCS activities to reasonably

determine when that vessel or equipment becomes an OCS source). 

 The authorities ICAS cites in support of its assertion that attachment to the 27

seabed on any of Shell’s lease blocks in the Chukchi or Beaufort Seas, without anything

else, renders the Discoverer an OCS source, do not support ICAS’s interpretation of the

(continued...)

anywhere in the Chukchi or Beaufort Seas. Id. at 12, 14-16 (asserting

that the “erected thereon” criterion does not apply to drillships, and

rather only applies to other types of equipment used for exploration such

as platforms, and to “the other phases of oil and gas activity, and not

drillship exploration”). Finally, ICAS asserts that allowing the lease 26

blocks to define the scope of the Permits but then making the OCS

source determination contingent on the receipt of an authorization to drill

from the Department of the Interior constitutes clear error because it is

an inconsistent interpretation of OCSLA. Id. at 15-16.

Despite ICAS’s considerable efforts to persuade the Board that

the determination of when the Discoverer becomes an OCS source

should be conditioned solely on the criterion from 40 C.F.R. § 55.2 that

requires Discoverer’s attachment to the seabed, and further that 27
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(...continued) 27

regulatory definition of the OCS source as it applies to Discoverer. In fact, the sources

ICAS cites for support are easily dismissed.

First, ICAS cites the preamble to the proposed OCS air regulations in support

of its assertion that attachment to the seabed alone is sufficient to render the Discoverer

drillship an OCS source. ICAS Petition at 14 (citing Outer Continental Shelf Air

Regulations, 56 Fed. Reg. 63,774, 63,777 (proposed Dec. 5, 1991)). ICAS simply fails

to acknowledge that in the final OCS regulations, EPA modified the definition of the

OCS source to clarify when vessels would be considered OCS sources, and the final

language of the regulation includes the criterion “erected thereon.” Outer Continental

Shelf Air Regulations, 57 Fed. Reg. 40,792, 40,807 (Sept. 4, 1992) (codified at 40 C.F.R.

§ 55.2). 

Second, ICAS plucks a sentence fragment from the legislative history

accompanying the 1978 amendments to OCSLA that reads “federal law is to be

applicable to all activities on all devices in contact with the seabed for exploration,

development, and production.” ICAS Petition at 14 (citing H.R. Rep. No. 95-1474, at 80,

reprinted in 1978 U.S.C.C.A.N. 1674,1679). The Board carefully examined the relevant

legislative and regulatory history of the definition of OCS source in Shell 2010,

slip op. at 51-55, 15 E.A.D. ___, including the 1978 OCSLA amendments. Congress

eliminated the reference to “fixed structures” in OCSLA section 4(a)(1) and replaced it

with “all installations and other devices permanently or temporarily attached to the

seabed.” See id. at 52 n.62, 15 E.A.D. ___. The Board reasoned that the conference

report from which ICAS selects the language that allegedly supports its interpretation of

the OCS source definition with respect to drillships explains that, in large part, the reason

Congress amended OCSLA section 4(a)(1) in 1978 was to ensure that foreign-built

production platforms could not escape U.S. customs duties once they were brought into

OCS waters. See id. (citing H.R. Rep. No. 95-1474, at 80-81, reprinted in

1978 U.S.C.C.A.N. at 1679-80). Thus, the sentence fragment ICAS removes from the

context of the legislative history of the 1978 OCSLA amendments does not support

ICAS’s contention that the determination of when the Discoverer becomes an OCS

source is governed only by attachment to the seabed.

Finally, ICAS’s reliance on the First Circuit decision in Alliance to Protect

Nantucket Sound, Inc. v. U.S. Army, 398 F.3d 105 (1st Cir. 2005) to support its

contention that an OCS source need not even be related to mineral extraction, much less

be erected on the seabed and used to explore, develop, or produce resources therefrom,

is misplaced. This case isinapposite to these OCS PSD appeals because it addresses the

U.S. Army Corps of Engineers’ jurisdiction to issue a permit to operate a data tower

located on the OCS pursuant to Section 10 of the Rivers and Harbors Act of 1899,

(continued...)
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(...continued) 27

33 U.S.C. § 403. The Board agrees with the Region that there is nothing in this case to

suggest “that a vessel that is simply anchored anywhere on the OCS” or on a specific

leasehold is sufficient to render that vessel, such as the Discoverer drillship, subject to

OCSLA’s jurisdiction. Supp. RTC at 18 & n.6.

 The Board is mindful that ICAS’s assertion, namely that the “erected 28

thereon” criterion does not apply to drillships such as the Discoverer, ICAS Petition

at 13-14, effectively renders the “erected thereon” criterion of the OCS source definition

mere surplusage, which is generally prohibited under the canons of statutory and

regulatory construction. See In re Beckman Prod. Servs., 8 E.A.D. 302, 310 (EAB 1999)

(“Under well accepted canons of construction, a rule should be read in a manner that

gives effect to all of its parts rather than in a way that renders some of its terms

meaningless or redundant.”), quoted in In re Vidiksis, TSCA Appeal No. 07-02,

slip op. at 16 (EAB Apr. 22, 2009), 14 E.A.D. ___; Clarification Order at 16 n.12; see

also Outer Continental Shelf Air Regulations, 57 Fed. Reg. at 40,793 (stating that the

regulatory definition of an OCS source “would include, for example, drill ships on the

OCS”). If a drillship is “erected” onshore or at port before it ever sets sail, the term

“erected” would be meaningless or redundant because every drillship will therefore be

“erected” for purposes of the OCS source definition contained in 40 C.F.R. § 55.2. 

attachment to the seabed by a single anchor anywhere within one of

Shell’s lease blocks in the Beaufort or Chukchi Seas should suffice,

ICAS’s arguments fall short for several reasons. 

First, ICAS failsto reconcile its position that only attachment to

the seabed is required for the Discoverer to become an OCS source28

with the Region’s robust analysis that, as directed by the Board’s

December 2010 remand order, provides a cogent, reasoned explanation

for the Region’s OCS source definition and gives meaning to all three

criteria in 40 C.F.R. § 55.2 consistent with both CAA section 328,

42 U.S.C. § 7627, and OCSLA section 4(a)(1), 43 U.S.C. § 1333(a)(1).

See Supp. Statement of Basis at 22-25; Supp. RTC at 17-19. In the

supplemental statement of basis, the Region carefully examined the

criteria contained in the regulatory definition of the OCS source because

40 C.F.R. § 55.2 references the “attached,” “erected,” and “used for the

purpose of” terms from OCSLA section 4(a)(1), 43 U.S.C. § 1333(a)(1).

Supp. Statement of Basis at 23. In particular, the Region acknowledged

that the phrasing in OCSLA § 4(a)(1) is different than in section 55.2,
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but concluded that the reference to “erected thereon” in 40 C.F.R. § 55.2

is “intended to reflect the process by which a vessel becomes attached to

the seabed and used thereafter for the purpose of exploring, developing,

or producing resources from the seabed.” Id. (noting that there is

neither any discussion of “erected” in the legislative history for CAA

§ 328 or OCSLA § 4(a)(1), nor any indication in the proposed or final

OCS regulations that the criteria present in 40 C.F.R. § 55.2 should be

interpreted in any way differently than they are in OCSLA § 4(a)(1)). 

The Region also analyzed the meaning of the verb “to erect” and

explained that its customary meaning “to construct” or “to build”

suggests that the activity be carried out according to a plan or

specification, and that requiring the attachment to the seabed occur at the

location where OCS activity is reasonably expected to occur, i.e., at the

drill site, ensures that attachment to the seabed is related to engaging in

a systematic and planned activity as an OCS source, and not for other

purposes such as waiting out a storm or anchoring in a harbor to get

supplies. Id. at 24 (citing the American Heritage and Merriam Webster

dictionary definitions of “to erect”);see also Supp. RTC at 18. Thus, the

Region has demonstrated through its analysis of the terms contained in

40 C.F.R. § 55.2, particularly the “erected thereon” criterion, that it

exercised its considered judgment in determining that the Discoverer

becomes an OCS source under 40 C.F.R. § 55.2 when it is attached to the

seabed at a drill site where it can reasonably be expected to conduct OCS

activities. See, e.g., Russell City II, slip op. at 86, 15 E.A.D. __

(determining that administrative record supported the permitting

authority’s selected compliance margin and reflected the permitting

authority’s “considered judgment” on the matter).

The alternative definition of the OCS source ICAS proposes,

although intended to capture the icebreaker’s emissions when pre-laying

the Discoverer’s anchors, would nevertheless lead to absurd results. As

the Region points out, ICAS’s proposition that the Discoverer becomes

an OCS source whenever it drops an anchor on one of Shell’s lease

blocks contravenes the statutory and regulatory definitions of OCS

source contained in CAA § 328 and 40 C.F.R. § 55.2. Region Response
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 As the Board noted in Shell 2010, in May 2010 the Secretary of DOI signed 29

a Secretarial Orderreorganizing the former Minerals Management Service (“MMS”) into

three independent entities to better carry out its three missions of: (1) improving the

(continued...)

at 9-10; Supp. RTC at 18. Shell’s lease blocks in the Chukchi and

Beaufort Seas are comprised of thousands of square miles each.

Supp. RTC at 18. Under ICAS’s proposed definition of the OCS source,

the Discoverer could be anchored on one of Shell’s lease blocks literally

hundreds of miles away fromthe drill site where OCS activity will occur,

and ICAS’s definition of the OCS source would capture the icebreaker’s

emissions when it pre-lays Discoverer’s anchors. See id. 

In addition, ICAS fails to address the implications of its

reasoning for the statutory provision in CAA section 328 that prevents

emissions from vessels servicing or associated with the OCS source that

are more than twenty-five miles from the OCS source from counting as

direct emissions of the OCS source. 42 U.S.C. § 7627; see also Region

Response at 10. ICAS’s proposed definition of the OCS source could

also lead to the absurd result of not regulating the Discoverer as an OCS

source if the Discoverer were anchored just outside of one of Shell’s

lease blocks and the icebreaker was pre-laying the Discoverer’s anchors

only a mile away on one of Shell’s lease blocks where the Discoverer is

authorized to conduct exploratory activities. See Supp. RTC at 18. In

sum, ICAS’s proposed alternative of defining the Discoverer as an OCS

source whenever it deploys a single anchor on one of Shell’s lease blocks

in the Chukchi or Beaufort Seas is unsupported by the statutes and

regulations that define an OCS source and would also lead to absurd

results. 

ICAS also contends that the OCS PSD permits, which authorize

Shell to conduct air pollutant emitting activities on entire lease blocks,

should govern the scope of the OCS source definition, which is limited

to drill sites where Shell has received an authorization to drill from the

Bureau of Ocean Energy Management, Regulation and Enforcement

(“BOEMRE”), must fail. ICAS Petition at 15-16; see also Chukchi 29
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(...continued) 29

management, oversight, and accountability of activities on the OCS; (2) ensuring a fair

return to the taxpayer from offshore royalty and revenue collection and disbursement

activities; and (3) providing independent safety and environmental oversight and

enforcement of offshore activities. See Shell 2010, slip op. at 11 n.7, 15 E.A.D. ___; see

also U.S. DOI, Departmental Manual, pts. 118 & 119, ch. 1 (Sept. 30, 2011), available

at http://elips.doi.gov/app_dm/dm.cfm (“Departmental Manual”) (establishing the

creation, authorities, objectives, and reporting relationships for the Bureau of Ocean

Energy Management (“BOEM”) and Bureau of Safety and Environmental Enforcement

(“BSEE”)). BOEMRE assumed all of MMS’s responsibilities in the interim until the full

implementation of the reorganization into the three separate entities was complete. See

Shell 2010, slip op. at 11 n.7, 15 E.A.D. ___. The transfer of the revenue collection

function to the Office of Natural Resources Revenue was completed on October 1, 2010.

See Secretary of the Interior, U.S. DOI, Order No. 3306, Organizational Changes Under

the Assistant Secretary - Policy, Management and Budget (Sept. 20, 2010), available at

http://elips.doi.gov/app_SO/so.cfm; Departmental Manual, pt. 112, ch. 34 (Apr. 15,

2011). One year later, on October 1, 2011, the reorganization was completed when

BOEMRE was replaced by BOEM and BSEE. See Departmental Manual, pts. 118 &

119. For consistency the Board will nonetheless refer to BOEMRE throughout this

decision because the Permits and the supporting documentation refer exclusively to

BOEMRE. 

Permit at 1 (listing lease blocks to which the permit applies); Beaufort

Permit at 1 (same). ICAS’s contention that this is an inconsistent

interpretation of OCSLA is unsupported. As the Region aptly states in

the supplemental response to comments, “[i]t is not the lease rights held

by a company but the authorization to drill that determines the area

where a drillship may be erected and used for the purpose of exploring,

developing, or producing resources from the seabed.” Supp. RTC at 19.

In other words, contrary to ICAS’s interpretation, it is the authorization

to drill at a specific site, and not the more general leaseholds Shell

maintains on the OCS, that renders the Discoverer “regulated or

authorized under OCSLA.” See CAA § 328(a)(4)(C)(ii), 42 U.S.C.

§ 7627(a)(4)(C)(ii). 

ICAS’s arguments also blithely ignore the larger regulatory

scheme that governs OCS exploration, development, and production.

See ICAS Petition at 15-16 (referencing different phases related to the

exploration for and recovery of oil and gas resources). It is BOEMRE,
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located within DOI, that has jurisdiction to authorize drilling activities

on the OCS. EPA is responsible for permitting the air pollutant emitting

activities on portions of the OCS. As the Board notes below in

Section VI.E, without the authorization from BOEMRE to operate at a

particular drill site, Shell will not be able to conduct any air pollutant

emitting activities as an OCS source. Thus, the Region did not clearly

err when it referenced BOEMRE’s authorization for a permit to drill

when defining the drill site in the OCS source definition contained in the

Permits because without the authorization, the Discoverer will not

become an OCS source.

In sum, the Region’s determination of when the Discoverer

becomes, and ceases to be, an OCS source in the context of these Permits

demonstrates that the Region undertook a cogent, well-reasoned analysis

of the statutory and regulatory requirements for an OCS source and

reasonably applied that analysis to the Discoverer drillship. ICAS’s

attempts to argue that Shell must include in its air quality impacts

analysis emissions from the icebreaker that will pre-lay the Discoverer’s

anchors at a drill site by asserting that the Discoverer becomes an OCS

source when it merely attaches to the seabed by a single anchor

anywhere on one of Shell’s lease blocks must fail. ICAS’s proposed

definition of the OCS source is not supported by the language of the

statutes and the regulation that define the OCS source. For the foregoing

reasons, the Board denies review of the OCS source definition in the

Permits. 

B. ICAS and Mr. Lum Have Not Demonstrated That the Region Failed

 to Satisfy Its Obligation to Comply with Executive Order 12898 and

 Applicable Board Precedent

ICAS and Mr. Lum argue that the Region’s supplemental

environmental justice analysis was insufficient to conclude that Shell’s

oil exploration activities on the OCS will not have a disproportionately

high and adverse effect on the health of the Alaska Native population

living on the North Slope. ICAS alleges that the Region’s environmental

justice analysis fails to properly account for the impacts of short-term
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NO2 and ozone exposures on the Alaska Native population, and further

asserts that the opportunities for public participation were inadequate.

Mr. Lum challenges the lack of analysis regarding the impacts air

emissions from Shell’s OCS activities could have on traditional

subsistence food sources, as well as Shell’s oil spill response

capabilities. The Region argues that its environmental justice analysis

and the conclusions resulting therefrom comply with Executive Order

12898, entitled “Federal Actions to Address Environmental Justice in

Minority Populations and Low Income Populations” (“Executive

Order”). The dispositive issue the Board must resolve is: did the Region

meet its obligation to comply with the Executive Order and applicable

Board precedent?

The Executive Order states in relevant part:

Agency Responsibilities. To the greatest extent

practicable and permitted by law, and consistent with

principles set forth in the report on the National

Performance Review, each Federal agency shall make

achieving environmental justice a part of its mission by

identifying and addressing, as appropriate,

disproportionately high and adverse human health or

environmental effects of its programs, policies, and

activities on minority and low-income

populations * * * .

Exec. Order 12898, 59 Fed. Reg. 7629, 7629 (Feb. 11, 1994) (A.R. F-1).

Federal agencies are required to implement the Executive Order

“consistent with, and to the extent permitted by, existing law.” Id.

at 7632. As the Board recently reiterated, the Executive Order “plainly

states that it is ‘intended only to improve the internal management of the

executive branch * * * ’ and ‘shall not be construed to create any right

to judicial review’ of the Agency’s efforts to comply with the Order.”

Id. at 7632-33, quoted in Avenal, slip op. at 20, 15 E.A.D. ___. The

Board has held that a permit issuer should exercise its discretion to

examine any “superficially plausible” claim that a minority or low-
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 Under the Executive Order, the Alaska Native population residing on the 30

North Slope qualifies as a minority population. See Supp. Statement of Basis at 64; ICAS

Petition at 22.

 NAAQS are health based-standards, designed to protect public health with 31

an adequate margin of safety, including sensitive populations such as children, the

elderly, and asthmatics. See In re AES Puerto Rico, L.P., 8 E.A.D. 324, 351 (EAB 1999),

aff’d sub nom. Sur Contra La Contaminación v. EPA, 202 F.3d 443 (1st Cir. 2000), cited

in Shell 2010, slip op. at 64 n.72, 15 E.A.D. ___. The Administrator is required to carry

out periodic reviews of the air quality criteria published under section 108 of the CAA,

42 U.S.C. § 7408, as well as the NAAQS, and to revise the criteria and standards as

appropriate. CAA § 109(d)(1), 42 U.S.C. § 7409(d)(1). The Board outlined the history

of 2 the NO NAAQS reviews in its December 2010 remand order. See Shell 2010,

slip op. at 65 nn.73-74, 15 E.A.D. ___.

income population may be disproportionately affected by a particular 30

facility seeking a PSD permit. In re EcoEléctrica, L.P., 7 E.A.D. 56, 69

n.17 (EAB 1997); accord Shell 2010, slip op. at 63-64 & n.71, 15 E.A.D.

___ (citing PSD cases). 

The Board remanded the 2010 Permits in part due to the

Region’s insufficient environmental justice analysis regarding the impact

of short- 2term NO exposures on North Slope communities. Shell 2010,

slip op. at 63-81, 15 E.A.D. ___. The challenge to the Region’s

environmental justice analysis occurred in a distinct context. The

Region issued the final 2010 Permits after the Administrator had

published a final rule in the Federal Register on February 9, 2010,

e 2stablishing a 1-hour NAAQS for NO to supplement the alreadyexisting 2

 annual NO NAAQS, but prior to the effective date of the new

1-hour NO2standard, April 12, 2010. See id., slip op. at 71, 15 E.A.D. 31

___. The substance of the Region’s environmental justice analysis

supporting the 2010 Permits consisted of a scant, one-paragraph

2

statement of compliance with the annual NO NAAQS, despite the

availability of updated scientific and technical reviews supporting the

Adm 2inistrator’s unequivocal determination that the annual NO NAAQS

alone was insufficient, by itself, to protect the public health with an

adequate margin of safety. See id., slip op. at 74-76 & n.83, 15 E.A.D

___. The record did not contain any acknowledgment or provide a
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 The supplemental analysis also includes, for some of the northern Iñupiat 32

communities, the distances residents have reported traveling offshore to hunt for

traditional subsistence food sources including bowhead whale, seal, and walrus. See

Supp. EJ Analysis at 7 (noting Nuiqsut residents have traveled up to sixty miles offshore

to the north and as far east as Camden Bay to hunt for bowhead whale and that Kaktovik

residents have traveled as far as thirty-five miles offshore to hunt for bowhead whale and

walrus); see also Shell 2010 et al., slip op. at 72 n.80, 15 E.A.D. ___ (noting that

(continued...)

rationale squaring the Region’s determination regarding the health

ef 2fects of NO with the Administrator’s findings, and thus the Board held

that compliance with a NAAQS standard that the Agency has already

deemed inadequate to protect the public health cannot by itself satisfy a

permit issuer’s obligation to adhere to the requirements of the Executive

Order. See id., slip op. at 75, 78, 15 E.A.D. ___. 

1. Region’s Supplemental Environmental Justice Analysis

Upon completion of remand proceedings, the Region released a

twenty-page supplemental environmental justice analysis to accompany

the Permits and included it in the record to allow for public comment on

the revised analysis. See Supplemental Environmental Justice Analysis

for Proposed OCS PSD Permit No. R10OCS/PSD-AK-2010-01 & Permit

No. R10OCS/PSD-AK-09-01 (undated) (“Supp. EJ Analysis”) (A.R.

FFF-8). The supplemental analysis explains that the northern Iñupiat

communities consist mostly of remote coastal villages whose residents

rely on subsistence food sources obtained through traditional activities

such as hunting, fishing, and whaling. Id. at 6. The analysis catalogues

the distances between the Iñupiat communities on the coast of the North

Slope and Shell’s lease blocks closest to shore in the Chukchi and

Beaufort Seas and also includes relative distances between the specific

planned drill sites in the Chukchi and Beaufort Seas, as contemplated in

Shell’s exploration plans, and the distances to the closest onshore

communities. Id. The Region also included an illustration that

juxtaposes the location of Shell’s lease blocks, including planned drill

sites, in the Chukchi and Beaufort Seas with onshore and offshore

subsistence use areas for the northern Iñupiat communities. Id. at 8.

32
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(...continued) 32

subsistence activities, which can take Iñupiat residents living on the North Slope far from

their local communities and closer to emissions sources, are a potential environmental

justice consideration that may be unique to the OCS PSD permitting context).

 The Region used demographic information gathered from the 2000 U.S. 33

Census to compare the population of the North SlopeBorough to the populations of both

the State of Alaska and the entire United States, which served as reference populations

for the demographic analysis. Supp. EJ Analysis at 9-11 & n.9. The North Slope

Borough consists of the following eight incorporated villages: Point Hope, Point Lay,

Wainwright, Atqasuk, Barrow, Nuiqsut, Kaktovik, and Anaktuvuk Pass. See Supp.

Statement of Basis at 64. 

The Region analyzed health conditions in the North Slope Borough utilizing 34

data from the Alaska Native Health Status Report 2009, prepared by the Alaska Native

Epidemiology Center and the Alaska Native Tribal Health Corporation. See Supp. EJ

Analysis at 11 n.12 

 In response to the Board’s remand of the 2010 Permits, Shell submitted a

35

new air quality impacts analysis of the operations authorized in the current Permits, which

now 2 require a demonstration of compliance with the new 1-hour NO NAAQS. Supp. EJ

(continued...)

The Region then analyzed demographic, health-related, and air

quality data. The demographic analysis indicates that 68% of residents

33

living in the North Slope Borough classify themselves as Alaska Natives.

Id. at 10. In addition, nearly half of North Slope residents speak a

language other than English at home. Id. The analysis of health data

revealed, among other things, that from 1990 to 2007 there has been a

158% rate of increase in the prevalence of diabetes for Alaska Natives

residing in the North Slope Borough, whereas during the same time

period there has been a 117% rate of increase in the prevalence in

diabetes for Alaska Natives throughout the State of Alaska. Id. at 11- 34

12. In addition, there is a higher incidence of outpatient visits for

respiratory problems ranging from the common cold to pneumonia in the

North Slope than in the rest of Alaska. Id. at 12. 

In the air impacts analysis, the Region addressed the new 1-hour

NO2 2 NAAQS, the new 1-hour sulfur dioxide (“SO ”) NAAQS, and 35
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(...continued) 35

Analysis at 15; see also Shell 2010, slip op. at 66 n.76 (explaining that as a consequence

of the Board’s decision to remand the 2010 Permits, permits issued upon completion of

remand proceedings must demonstrate compliance with, among other things, the annual

and 1-hour 2 NO NAAQS).

 Background air quality data consists of ambient air quality measurements

36

assumed to be representative of the existing air quality in the project area due to general

industrial development on the North Slope. See 2010 Chukchi RTC at 147. 

compliance with other NAAQS standards, including ozone. Id. at 15-20.

The results of the maximum modeled total impacts under the Permits for

1-hour 2 NO , including consideration of background air quality data, are 36

81.6 μg/m in the Beaufort Sea and 174.0 μg/m in the Chukchi Sea. Id. 3 3

at 15, 17. The maximum values were modeled 500 to 2000 meters from

2

the hull of the Discoverer, and are both less than the 1-hour NO

2

standard of 188 μg/m . Id. The Region concluded that the 1-hour NO 3

NAAQS is expected to be attained in all areas accessible to the public,

including areas both onshore and offshore where local communities

engage in subsistence activities. Id. (noting that conservative

assumptions were used in modeling). The modeled impacts for 1-hour

NO2 in communities located on the Beaufort and Chukchi Seas are all

2

substantially lower than the 188 μg/m 1-hour NO standard. Id. at 16. 3

The Region also explained that in instances where a community is

located more than fifty kilometers from the closest lease block, the

impact and total concentration at the community is assumed to be the

impact and concentration at fifty kilometers from the Discoverer in the

direction of the community. Id. at 16-17. Thus, modeled impacts at

communities located more than fifty kilometers from Shell’s closest

lease block in either the Chukchi or the Beaufort Sea are expected to be

even lower than reported in the supplemental environmental justice

analysis. Id. at 16. As a result, the Region concluded that the 1-hour

NO2 standard will be attained in all locations beyond 500 meters from

2

the hull of the Discoverer and will be well below the 1-hour NO

NAAQS in North Slope communities and in areas where local

communities conduct subsistence activities. Id.
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2

 In the Beaufort Sea, the worst case modeled 1-hour SO impact at the 37

500 meter boundary assumed by Shell in its analysis is 35 μg/m , and in the Chukchi Sea 3

the worst case modeled impact at the 500 meter boundary is 40.3 μg/m . Supp. EJ 3

Analysis at 18. In communities bordering the Beaufort Sea including Kaktovik,

Deadhorse, and Nuiqsut, modeled concentrations are all less than 10% of the 196 μg/m3

1-hour 2 SO NAAQS, and similarly, at fiftykilometers the concentrations in Point Lay and

Wainw 2right bordering the Chukchi Sea are also less than 10% of the 196 μg/m SO 3

standard. Id. 

The Region next considered Shell’s compliance with the new 1-

hou 2r SO NAAQS, set at 196 μg/m , for which Shell included a new 3

modeling analysis of the air quality impacts due to the standard

becoming effective in June 2010. Id. at 18. Even using conservative

modeling 2 assumptions, the modeled impacts for 1-hour SO are expected

to be minimal at all locations due in large part to a condition in the

Permits that requires Shell to use ultra low sulfur diesel fuel to power the

Discoverer and the Associated Fleet. Id. Based on these modeled 37

2

impacts the Region concludes that the 1-hour SO standard will be

attained at all locations beyond the 500 meter assumed boundary and will

be well below the NAAQS in the North Slope communities and in areas

where local communities conduct subsistence activities. Id.

With respect to other NAAQS, the Region stated that despite

increases in emissions from certain units, relative to the 2010 Permits,

“overall emissions from the Discoverer and the Associated Fleet on an

annual and 1-hour basis will be reduced by more than 50%” for oxides

of nit xrogen (“NO ”), particulate matter with a diameter of

10 m 10 icrometers or less (“PM ”), particulate matter with a diameter of

2.5 m 2.5 icrometers or less (“PM ”), carbon monoxide (“CO”), and volatile

organic compounds (“VOC”), with “lesser but still substantial reductions

of SO2.” Id. at 18. The Region also noted that with respect to ozone,

g xiven that ozone precursor emissions of NO and VOC “have decreased

substantially in comparison to those permitted under the 2010 Permits,

Region 10 continues to believe that emissions from the Discoverer and

the Associated Fleet will not cause or contribute to a violation of the

ozone NAAQS” as discussed in the statements of basis supporting the

2010 Permits. Id. at 20. 
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 ICAS asserts that the Region erred both when it did not post the supplemental 38

environmental justice analysis on its website until asked to do so, and when it did not

include the supplemental analysis within the supplemental statement of basis for the

Permits, as other Regions have done. ICAS Petition at 32-33.

First, although the Region did not include the entire supplemental

environmental justice analysis in the supplemental statement of basis, the Region made

clear that the supplemental environmental justice analysis “is in the record for this action

and is summarized here.” Supp. Statement of Basis at 62; see also Region Response

at 38-39 (noting the supplemental statement of basis contained an eight-page summary

of the twenty-one page supplemental environmental justice analysis). As long as the

supplemental environmental justice analysis in its entirety was in the record and thus

available for public inspection and comment, as here, the Board finds no error in

including a detailed summary of the supplemental environmental justice analysis, as

opposed to the analysis in its entirety, in the supplemental statement of basis. In addition,

the Region further explains that while it is not required, the Region fully intended to post

the supplemental environmental justice analysis to its website but inadvertently did not

until ICAS pointed out the omission. Region Response at 38-39. The Region

immediately emailed ICAS a copy of the analysis and posted the document to its website.

Id. at 39. The Board agrees with the Region that the inadvertent and temporary failure

to include the supplemental environmental justice analysis on the Region’s website

amounts to no more than harmless error.

(continued...)

Overall, the Region concluded that Shell’s proposed OCS

activities in the Chukchi and Beaufort Seas will not result in

disproportionately high and adverse human health or environmental

effects with respect to Alaska Natives residing on the North Slope, and

further, that in reaching this conclusion the Region considered the impact

on communities engaging in subsistence activities. Id. With this

background in mind, the Board now turns to the specific assertions both

ICAS and Mr. Lum make in support of their arguments that the Region

has not complied with its obligation under the Executive Order. 

2. One-Hour 2 NO NAAQS Analysis

2

ICAS challenges the Region’s consideration of 1-hour NO

NAAQS compliance in the supplemental environmental justice analysis

on 2several grounds. ICAS asserts that in addition to NO emissions 38
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(...continued) 38

More generally, ICAS challenges the Region’s compliance with the Executive

Order based on the adequacy of the public participation the Region afforded interested

parties throughout the development of the Permits on remand. ICAS Petition at 31-33;

see also Knauf II, 9 E.A.D. at 16-17 (distinguishing between objections to the quantity

and quality of public participation in the permitting process, including the environmental

justice analysis, and substantive objections to the methodology and data used in the

environmental justice analysis). ICAS’sremaining challenges to the amount and quality

of public participation opportunities available pertaining to the supplemental

environmental justice analysis appear to mirror its more general arguments regarding the

public participation process. See ICAS Petition at 7-10. Accordingly, the Board

addresses ICAS’s challenges to the adequacy of the public participation process, both

generally and with respect to the supplemental environmental justice analysis, in Section

VI.G below.

from the Discoverer when it is an OCS source and from the Associated

Fleet when it is within twenty-five miles of the Discoverer, the Region

mus 2t also account for mobile source NO emissions that remain

unregulated by the OCS PSD Permits when assessing potentially adverse

hea 2lth impacts of NO emissions on North Slope communities. ICAS

Pet 2ition at 26-27. ICAS further asserts that when included in the NO

NAAQS analysis, these mobile emissions could collectively cause or

contribute to a NAAQS violation. Id. at 29. In addition, ICAS

challenges the Region’s “fatal flaw of the environmental justice

analysis,” namely the failure to analyze the impacts of Shell’s emissions

on residents of the North Slope conducting subsistence activities

offshore. Id. Finally, ICAS challenges the Region’s analysis of Shell’s

1-hour NO2 NAAQS compliance based on several technical decisions the

Region made. Id. at 30. 

ICAS’s assertion that mobile source emissions that are otherwise

unregulated in the context of an OCS PSD permit must be included when

ca 2lculating the 1-hour NO NAAQS must fail. The Region explains in

the supplemental response to comments that the CAA and EPA’s

implementing regulations make clear that a stationary source does not

include emissions from mobile sources. Supp. RTC at 97 (citing CAA

§ 302(z), 42 U.S.C. § 7602(z) and 40 C.F.R. § 52.21(b)(18), (k)).

Nowhere in its petition does ICAS acknowledge the Region’s response
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 The Region notes that because emissions from mobile sources are not 39

considered in PSD permitting actions, it had limited information regarding such

emissions and thus it had “insufficient information to conclude with certainty whether or

not emissions from these different vessels and activities that are not required to be

considered in a PSD NAAQS analysis would, in conjunction with permitted emissions,

cause 2 or contribute to a violation of the 1-hour NO NAAQS.” Region Response at 46-47

(citing Avenal, slip op. at 24, 15 E.A.D. ___). 

or attempt to explain why, despite the clear language of the CAA and its

implementing regulations, the Region should nonetheless in this instance

2

include mobile source emissions in its calculation of the 1-hour NO

NAAQS. As the Board has made clear before, petitioners bear the

burden of demonstrating that review is warranted, which includes

explaining why a permit issuer’s response to comments is inadequate.

See, e.g., Russell City II, slip op. at 14, 15 E.A.D. ___. Here, in the face

of the Region’s reasoned explanation for whymobile emissions were not

2

included in the 1-hour NO NAAQS calculation, ICAS simply states,

“Region 10 failed to undertake an analysis of all of the emissions from

Shell’s operations.” ICAS Petition at 27. ICAS has not met its burden.

ICAS next asserts that the Region erred when the Region

concluded it did not have sufficient information to estimate mobile

source emissions that may cause or contribute to a violation of the 1-hour

NO2 NAAQS. ICAS Petition at 28. Despite the fact that, as explained

above, mobile source emissions play no part in a NAAQS impact

analysis, the Region actually went further than it was legally required

and “nonetheless considered information available to it” and attempted

to account for emissions from mobile sources when assessing the impacts

of hourly 2 NO exposures on residents of the North Slope. See Supp. 39

RTC at 103-04. Nowhere in its petition does ICAS acknowledge the

Region’s laudable efforts or the Board’s recent statement that the

Executive Order does not require EPA to reach a determinative outcome

when conducting an environmental justice analysis prior to issuing a

permit, particularly when the available data is inconclusive. Avenal,

slip op. at 24, 15 E.A.D. ___. Again, ICAS has not met its burden to

demonstrate that review is warranted.
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The Board agrees with the Region that ICAS’s assertion that the

Region failed “to analyze the impacts of Shell’s emissions on subsistence

hunters and fishers while offshore,” is unsupported by the record. ICAS

Petition at 29 & n.19 (emphasis in original). The Region stated in its

supplemental environmental justice analysis that mobile source

emissions will dissipate while vessels are in transit, Supp. RTC at 104,

and the Region also made efforts in the supplemental environmental

justice analysis to demonstrate how the subsistence areas located in close

proximity to Shell’s lease blocks might be affected by Shell’s OCS

activities. Supp. EJ Analysis at 16-17; id. at 7 (discussing distances

subsistence hunters, whalers, and fishermen have traveled offshore in

search of subsistence foods); id. at 8 (depicting subsistence use areas

mapped over Shell exploration plan well sites). The Region conducted

a supplemental environmental justice analysis that included and analyzed

data that is germane to the environmental justice issue raised during the

comment period, see Shell 2010, slip op. at 79 n.87, 15 E.A.D. ___, and

the Region has demonstrated that it exercised its considered judgment

when it juxtaposed the subsistence use areas and the planned exploration

areas and discussed the distances between the North Slope villages and

the closest lease blocks and well sites, respectively. Although ICAS may

disagree with the contents or conclusions of the Region’s supplemental

environmental justice analysis, ICAS has not demonstrated that this

difference in opinion has resulted in an insufficient effort on the

Region’s part regarding environmental justice, or that the Region failed

to analyze impacts.

Finally, ICAS enumerates several problems with the Region’s

supplemental environmental justice analysis that amount to challenges

to the Region’s technical expertise. See ICAS Petition at 30; Region

Response at 44-45. Without elaborating any further, ICAS expresses

“s 2ignificant concerns” with, among other things, installed NO controls

and their ability to function properly in cold weather, the use of “diurnal

pa 2iring” of NO data, and the need for additional “tracer experiments” to

supply data for the AERMOD model. Id. It is axiomatic that a challenge

to the fundamental technical expertise of a permit issuer requires a

petitioner to overcome a particularly heavy burden, and that a successful
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challenge to a permit issuer’s technical expertise must consist of more

than just a difference of opinion. See Shell 2011, slip op. at 15,

15 E.A.D. ___; accord In re NE Hub Partners, L.P., 7 E.A.D. 561, 567

(EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. EPA,

185 F.3d 862 (3rd Cir. 1999). Here, ICAS has failed to overcome this

particularly heavy burden. 

3. Ozone NAAQS Analysis

ICAS also challenges the Region’s compliance with its

obligation under the Executive Order based on the Region’s decision to

demonstrate compliance with the current 8-hour ozone NAAQS, which

is set at 0.75 parts per million (“ppm”), as opposed to the range of 0.60

to 0.70 ppm for the 8-hour ozone NAAQS that was proposed by EPA’s

Administrator in January 2010 but never finalized. See ICAS Petition

at 22-24; see Region Response at 39-42; Supp. RTC at 94, 108. On

September 2, 2011, subsequent to the close of the public comment period

and prior to the Region issuing the Permits, the President requested that

the Administrator withdraw the proposed 8-hour ozone NAAQS

standard, and instead enforce the current 8-hour ozone standard of

0.75 ppm until the ozone standard is reconsidered again in 2013.

Statement on the Ozone National Ambient Air Quality Standards, 2011

Daily Comp. Pres. Doc. 607, p. 1 (Sept. 2, 2011), available at

http://www.gpo.gov/fdsys/ (click on Compilation of Presidential

Documents). 

The Region asserts that the impact of the proposed revision to

the 8-hour ozone standard was raised only in the context of cumulative

impacts in comments on the 2010 Permits, Region Response at 40, but

that no party petitioned for specific review of the Region’s ozone

analysis for the 2010 Permits, which is unchanged in the current Permits,

and thus the Board should prevent ICAS from circumventing the Board’s
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 The Region also asserts that ICAS should not be allowed to question any 40

aspect of the Region’stechnical determination that permitted emissions will not cause or

contribute to a violation of the 8-hour ozone NAAQS, and that the Region’s technical

determination that a modeling analysis for ozone is unnecessary to reach that conclusion

should similarly remain uncontested. Region Response at 41.

remand order by raising now the adequacy of the Region’s ozone

analysis as an environmental justice claim. Id. at 41. 40

The distinct facts surrounding the proposed 8-hour ozone

NAAQS revision do not change the procedural posture of the appeal of

this issue on remand. Although ICAS argues to the contrary, the current,

enforceable standard that Shell must demonstrate compliance with is

0.75 ppm. As this Board has stated previously, “[a] permit issuer must

apply the statutes and implementing regulations in effect at the time the

final permit decision is made.” Russell City II, slip op. at 108 n.98,

15 E.A.D. ___ (quoting In re Phelps Dodge Corp., 10 E.A.D. 460, 478

n.10 (EAB 2002)). The Region’s decision to require Shell to comply

with the 0.75 ppm 8-hour ozone NAAQS is consistent with applicable

law and the corresponding regulations in effect at the time the Region

issued the Permits. 

In addition, ICAS does not demonstrate that the Region’s

analysis of the impacts the 8-hour ozone standard may have on Alaska

Natives residing on the North Slope would result in a disproportionately

high or adverse impact on the health of Alaska Natives. The Region

explained in the supplemental response to comments supporting the

Permits that it chose not to revisit its decision to forego modeling to

demonstrate that issuance of the Permits would not cause or contribute

to an exceedence of the 8-hour ozone NAAQS, in large part because the

most recent ozone data indicates that current ozone levels in the Chukchi

and Beaufort Seas are well below even the low end of the range of the

proposed 8-hour ozone NAAQS. Supp. RTC at 94. The Region also

no xted that the contribution of ozone precursors, NO and VOC, under

these Permits, is small in relation to other sources of precursor emissions

in the area. Region Response at 42. Finally, with respect to ICAS’s
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assertion that the Region failed to consider the cumulative emissions of

the operations on the Arctic OCS, the Region noted that the PSD

regulations only require a permit issuer to consider existing sources,

sources that are permitted but not constructed, and sources that have

submitted complete PSD applications. Id. at 42; Supp. RTC at 95 (citing

New Source Review Workshop Manual, Prevention of Significant

Deterioration and Nonattainment Area Permitting C.32 to C.34

(Oct. 1990)). ICAS fails to demonstrate how the Region’s responses to

its comments are inadequate, and thus, does not meet its burden of

demonstrating that review is warranted. See, e.g., Russell City II,

slip op. at 14, 15 E.A.D. ___ . 

4. Impacts of Air Emissions on Traditional Subsistence Food 

 Sources

Mr. Lum asserts that as a result of Shell’s OCS activities,

“[h]undreds of tons of exhaust/contaminants will be introduced into the

subsistence zones of the coastal Iñupiat,” which will contaminate the

food supply and significantly alter Iñupiat culture due to insufficient

access to subsistence foods. Lum Petition (Oct. 24, 2011). The Board

construes Mr. Lum’s assertion as a challenge to the adequacy of the

Region’s compliance with the Executive Order.

The Board is cognizant that Mr. Lum filed comments on the

Permits and that he is representing himself in these proceedings. See Email from Daniel Lum to Suzanne Skadowski, EPA Region 10 (Aug. 5,

2011, 1:20 pm PDT) (“Lum Comments”) (A.R. RRR-24). Yet the issue

Mr. Lum raises, the impacts of Shell’s planned air emissions on

traditional subsistence food sources utilized by Alaska Natives living on

the North Slope, “could have been raised, but [was] not raised, in the

[2010 Permit] appeals.” Shell 2010, slip op. at 82, 15 E.A.D. ___; see

also Region Response at 47 (noting that these concerns were raised in

comments on the 2010 Permits and that the Region responded to those

comments). As the Board noted earlier in Section III, because the

Permits in these appeals were issued subject to a remand, the scope of

Board review upon completion of remand proceedings is limited to
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issues the Region addressed on remand, and to issues raised in the

petitions before the Board in the 2010 Permit appeals but not addressed

by the Region on remand. See Shell 2010, slip op. at 82, 15 E.A.D. ___.

The Region responded to comments regarding subsistence activities and

traditional use in the response to comments accompanying the 2010

Permits. See 2010 Chukchi RTC 144-45; see also Supp. RTC at 111-14

(responding to comments regarding subsistence activities and traditional

use for Permits issued upon completion of remand proceedings in

July 2011). However, no party raised this issue in a petition for review

of the 2010 Permits. As a result, the Board denies review because the

impacts of air emissions on traditional subsistence food sources were not

raised at the time of the first appeal. See, e.g., Knauf II, 9 E.A.D. at 7

(“All other issues pertaining to this PSD permit should have been raised

at the time of first appeal. Issues raised outside of the appeals period on

the original permit are considered untimely.”), quoted in In re Upper

Blackstone Water Pollution Abatement Dist., NPDES Appeal Nos. 10-09

through 10-12, slip op. at 8 (Mar. 31, 2011), 15 E.A.D. ___ (citing cases

consistent with this limitation where the Board has denied review of

issues not raised in the initial petition for review, but instead raised in

later briefs), appeals docketed, sub nom. Upper Blackstone Water

Pollution Abatement Dist. v. EPA, No. 11-1474 (1st Cir. Apr. 29, 2011),

Conservation Law Found. v. EPA, No. 11-1610 (1st Cir. May 27, 2011).

5. Oil Spill Response Capabilities

Mr. Lum asserts that the EPA has failed to require Shell to

demonstrate its oil spill response capabilities in open water, ice floes,

and under sheet ice. Lum Petition at 1. The Region responds that this

issue, among others, is outside the scope of these permit proceedings and

thus is not properly subject to review. Region Response at 47-48.

The Board has previously emphasized that “[t]he PSD review

process is not an open forum for consideration of every environmental

aspect of a proposed project, or even every issue that bears on air

quality.” In re Knauf Fiber Glass GmbH, 8 E.A.D. 121, 127 (EAB 1999)

(“Knauf I”), quoted in In re Sutter Power Plant, 8 E.A.D. 680, 688
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 As the Board explained in note 9 above, in its March 2011 order on four 41

additional issues the Board held, among other things, that the Region did not err when

it declined to include emissions from unplanned operations of the oil spill and response

vessels in Shell’s potential to emit analysis. See Shell 2011, slip op. at 26-40, 15 E.A.D.

___. Although this issue involved the oil spill response vessels, the Board decided the

issue because it directly related to the potential to emit analysis required by the PSD

regulations.

On December 16, 2011, BOEMRE (now BOEM, see note 29 above) 42

conditionally approved Shell’s exploration plan for the Chukchi Sea. Letter from David

Johnston, Regional Supervisor for Leasing and Plans, Alaska OCS Region, BOEM, U.S.

DOI, to Susan Childs, Shell Gulf of Mexico, Inc. (Dec. 16, 2011) (“Chukchi EP Letter”).

The approval of the Chukchi Sea exploration plan was conditioned, among other things,

on adjusting the drilling season according to a “‘trigger date’ established each year by

BOEM, based upon the date of first ice encroachment over the drill site within any of the

last five years,” which is intended “to reduce risks * * * by assuring a greater opportunity

for response and cleanup in the unlikely event of a late season oil spill.” Id. at 2. In

addition, Shell will be required “to conduct a field exercise to demonstrate their ability

to deploy” the subsea well capping and containment system Shell has committed to have

at its disposal. Id. at 3-4. 

(EAB 1999); see also In re Encogen Cogeneration Facility, 8 E.A.D.

244, 259-60 (EAB 1999). The Board has jurisdiction “to review issues

directly related to permit conditions that implement the federal PSD

program,” Sutter, 8 E.A.D. at 688, but will deny review of issues not

governed by the PSD regulations because it lacks jurisdiction over

them. Id.; see also Encogen, 8 E.A.D. at 259 (noting that petitioners 41

had not shown how the issues they requested the Board to review fell

within the Board’s PSD jurisdiction). Moreover, there are often other

regulatory programs in place that may address a petitioner’s concern.

Knauf I, 8 E.A.D. at 162; see also Shell 2007, 13 E.A.D. at 405 n.66.

EPA’s jurisdiction over portions of the OCS applies to air

emissions subject to the CAA and its implementing regulations. In this

instance, BOEMRE is responsible for implementing regulations that

address oil spill and response capabilities. The Board does not have 42

jurisdiction to consider Shell’s oil spill and response capabilities in the

Arctic OCS, and thus, the Board denies Mr. Lum’s petition for review on

these grounds.
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 The revised standard became effective in the interim between the prior Shell

43

permits and the revised permits at issue in this case. For a synopsis of the time lines for

2

issuance of the 1-hour NO NAAQS, see Shell 2010, slip. op. at 68-69, 15 E.A.D. ___.

 The 98th percentile form corresponds approximately to the 7th or 8th highest 44

daily maximum concentration in a year. 75 Fed. Reg. at 6492.

For all of the foregoing reasons, the Board declines to review the

Region’s compliance with the Executive Order and applicable Board

precedent. 

C. NVPH Petitioners Failed to Raise Below Their Contention That 

 Shell’s Ambient Air Quality Analysis Was Flawed in That It Failed 

 to Conform to Applicable Agency Guidance

On February 9, 2010, EPA published in the Federal Register a

2

final rule (effective April 12, 2010) revising the primary NO NAAQS

“in order to provide requisite protection of public health as appropriate

unde 2r section 109 of the Clean Air Act.” Primary NAAQS for NO ,

75 Fed. Reg. 6474, 6475 (Feb. 9, 2010); see also Section VI.B above;

Shell 2010, slip op. at 64-65 & n.74, 15 E.A.D. ___. This rule set the

new 1-hour 2 2 NO NAAQS standard (hereinafter “the 1-hour NO

NAAQS”) at 100 parts per billion (“ppb”) to supplement the existing

annual standard, set at 53 ppb. 75 Fed.Reg at 6475. EPA regulations 43

specify how attainment of the standard is to be calculated, providing that

the 100 ppb standard is met “when the annual 98th percentile of the daily

maximum 1-hour average concentration is less than or equal to 100 ppb,

as determined in accordance with Appendix S of this part for the 1-hour

standard.” 40 C.F.R. § 50.11(f). This calculation is sometimes referred

to as “the form.” See 75 Fed. Reg. at 6477 n.5, 6492-93 . The 100 ppb 44

2

standard reflects the maximum allowable NO concentrations anywhere

in an area. Id. at 6493, 6502. In its Supplemental Statement of Basis,

the Region stated that the air quality analysis conducted for these Permits

demonstrates that the emissions will not cause or contribute to a

v 2iolation of the 1-hour NO NAAQS and that the Permits include limits

that correspond to the 1-hour emissions “from the various emissions

units on the Discoverer and the Associated Fleet assumed in Shell’s air
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 According to the Page Memo, the guidance was issued in response to reports 45

2

that sources were modeling potential violations of the 1-hour NO NAAQS. Page Memo

at 1. The Memo states that “[t]o respond to these reports and facilitate the PSD

permitting of new and modified major stationary sources, we are issuing the attached

guidance in the form of two memoranda.” Id. The attached memoranda are titled

“Gene 2ral Guidance for Implementing the 1-hour NO National Ambient Quality Standard

2

in Prevention of Significant Deterioration Permits, Including an interim 1-hour NO

SignificantImpact Level,” and “Applicability of Appendix W Modeling Guidance for the

1-hou 2r NO National Ambient Air Quality Standard.” Id. at 1-2. Although the Page

Memo attaches these two memoranda, the Memo is consecutively numbered as a single

document.

 In order to establish compliance with the NAAQS and PSD increments, 46

permit applicants must conduct an “ambient air quality analysis,” which applicants must

prepare under the permitting rules for each regulated pollutant their proposed facilities

will emit in “significant” amounts. 40 C.F.R. § 52.21(b)(23)(i), (m)(1)(i). This analysis

predicts a pollutant’s future concentration in the ambient air by modeling a proposed

facility’s expected emissions of the pollutant against the backdrop of existing ambient

conditions. To conduct an air quality analysis, a permit applicant compiles data on the

proposed facility’s physical specifications and anticipated emission rates, local

topography, existing ambient air quality, meteorology, and related factors. See, e.g., id.

§ 52.21(l), (m); id. pt. 51 app. W (Guideline on Air Quality Models); Knauf I, 8 E.A.D.

(continued...)

quality monitoring analysis.” Supp. Statement of Basis at 31; see also

id. at 49-51 (Modeling Results). EPA has issued guidance clarifying

procedure 2s for demonstrating compliance with the new 1-hour NO

NAAQS. See Memorandum from Stephen D. Page, Dir., Office of Air

Quality Planning & Standards, U.S. EPA, to Reg’l Air Dirs., U.S. EPA,

Guidance Concerning 2 the Implementation of the 1-Hour NO NAAQS for

the Prevention of Significant Deterioration (June 29, 2010) (“Page

Memo”) (A.R. BBB-153); Memorandum from Tyler Fox, Leader, Air 45

Quality Monitoring Grp., Office of Air Quality Planning & Standards,

U.S. EPA, to Reg’l Air Dirs., U.S. EPA, Additional Clarification

Regarding Application of Appendix W Modeling Guidance for the 1-

Hou 2r NO National Ambient Air Quality Standard (Mar. 1, 2011) (“Fox

Memo”) (A.R. BBB-80).

NVPH Petitioners assert that Shell’s ambient air quality analysis

was flawed. In particular, NVPH Petitioners state that in 46
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(...continued) 46

at 145-48; Office of Air Quality Planning & Standards, U.S. EPA, New Source Review

Workshop Manual at C.16-.23, .31-.50 (draft Oct. 1990) (“NSR Manual”). These data

are then processed using mathematical models that calculate the rates at which pollutants

are likely to disperse into the atmosphere under various climatological conditions, with

the goals of determining whether emissions from the proposed source will cause or

contribute to a violation of either the NAAQS or the PSD increments. See 40 C.F.R.

§ 52.21(f); id. pt. 51 app. W; NSR Manual at C.24-.27, .51-.70.

“demonstrat[ing] compliance with the form, Shell altered the cumulative

impacts from which it selected the 98th percentile 1-hour daily

maximum. More specifically, NVPH Petitioners allege that Shell used

background values that were already adjusted to the 98th percentile,

instead of basing its calculations on the full distribution of background

values.” NVPH Petition at 24 (footnote omitted). According to NVPH

Petitioners, this method for demonstrating compliance with the 1-hour

NAAQS was rejected in the Page Memo as “not being protective of the

NAAQS.” Id. (quoting Page Memo at 18). NVPH Petitioners then cite

to a portion of the more recent Fox Memo which, according to them,

allows for the method Shell used to calculate background values. Id.

at 25. That is, the Fox Memo states that the approach used in the Page

Memo was overly conservative and should not be used in most cases. Id.

(citing Fox Memo at 17-20). NVPH Petitioners assert that the Region

allowed Shell to demonstrate compliance with the form of the 1-hour

NAAQS using the approach permitted in the Fox Memo without

providing an explanation as to why the determination in the Page Memo

was incorrect. Id. NVPH Petitioners argue that “[b]ecause neither EPA

nor the Region provided any explanation about whether and, if so, how,

its earlier conclusion [in the Page Memo] that the use of the 98th

percentile background values ‘is not protective of the national ambient

air quality standard’ was incorrect, EPA’s new guidance and the

approach taken by the Region here in reliance on it are arbitrary.” Id.

at 26 (quoting Page Memo at 17-20). NVPH Petitioners contend that the

Region had an obligation to explain this “departure from its prior

analysis.” Id.
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Upon examination of the record, the Board concludes that this

issue was not raised during the comment period and was therefore not

preserved for review. As stated above, the regulations require any

person who believes that a permit condition is inappropriate to raise “all

reasonably ascertainable issues and * * * all reasonably available

arguments supporting [petitioner's] position” during the comment period

on the draft permit. 40 C.F.R. § 124.13. That requirement is made a

prerequisite to appeal by 40 C.F.R. § 124.19(a), which requires any

petitioner to “demonstrat[e] that any issue[] being raised [was] raised

during the public comment period * * * to the extent required[.]”). In re

ConocoPhillips Co., 13 E.A.D. 768, 800-01 (EAB 2008); accord In re

Christian Cnty. Generation, LLC, 13 E.A.D. 449, 457 (EAB 2008);

Shell 2007, 13 E.A.D. at 394 n.55. 

The requirement that an issue must have been raised during the

public comment period in order to preserve it for review is not an

arbitrary hurdle placed in the path of potential petitioners. Russell

City II, slip op. at 13, 15 E.A.D. ___; In re City of Marlborough,

12 E.A.D. 235, 244 n.13 (EAB 2005), appeal dismissed for lack of juris.,

No. 05-2022 (1st Cir. Sept. 30, 2005); In re BP Cherry Point,

12 E.A.D. 209, 219 (EAB 2005). Rather, the requirement serves an

important function related to the efficiency and integrity of the overall

administrative permitting scheme. Marlborough, 12 E.A.D. at 244 n.13.

The intent of the rule is to ensure that the permitting authority first has

the opportunity to address permit objections and to give some finality to

the permitting process. Id.; In re Sutter Power Plant, 8 E.A.D. 680, 687

(EAB 1999). As the Board has explained, “[t]he effective, efficient and

predictable administration of the permitting process demands that the

permit issuer be given the opportunity to address potential problems with

draft permits before they become final.” In re Teck Cominco, 11 E.A.D.

457, 481 (EAB 2004) (quoting In re Encogen Cogeneration Facility,

8 E.A.D. 244, 250 (EAB 1999)). “In this manner, the permit issuer can

make timely and appropriate adjustments to the permit determination, or,

if no adjustments are made, the permit issuer can include an explanation

of why none are necessary.” In re Essex County (N.J.) Res. Recovery

Facility, 5 E.A.D. 218, 224 (EAB 1994).
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 In its response, the Region asserts that NVPH Petitioner’s argument is based 47

on a misreading of the Page Memo. According to the Region, the cited language in the

Page 2 2.5 Memo does not relate to the 1-hour NO NAAQS, but to the 24-hour PM

NAAQS. Region Response at 30. Because the Board concludes that this issue was not

raised during the public comment period, the Board does not address this assertion.

See In re Teck Cominco Alaska, Inc., 11 E.A.D. 457, 481-82 (EAB 2004) 48

(denying review where issue was not specifically raised during the comment period). The

Board notes that the issue NVPH Petitioners did raise during the comment period was

fully and adequately addressed in the Supplemental Response to Comments. Specifically,

in commenting on the draft permit, NVPH Petitioners raised the argument that Shell had

2

failed to demonstrate compliance with the 1-hour NO NAAQS because, according to

NVPH Petitioners, Shell used background ambient air data in a manner that understated

the impact of its operations. NVPH Comments at 7-8. As stated above, NVPH

Petitioners’ comments recognized that Shell’s approach to analyzing background data

was consistent with the Fox Memo, but argued that Shell’s approach was inconsistent

w 2ith the 1-hour NO NAAQS standard itself. Id. at 8. The Region provided a detailed

response to this assertion in the Supplemental Response to Comments. Supp. RTC at 75-

76; see also id. at 68-71. Nothing in the NVPH Petition indicates why the Region’s

response on this issue was erroneous or otherwise warrants Board review, nor does the

Board find anything erroneous in the Region’s response. Thus, even had Petitioners

preserved this issue, the Board would deny review. See, e.g., In re Guam Waterworks

Auth., NPDES Appeal Nos. 09-15 & 09-16, slip op. at 17-18 (Nov. 16, 2011),

15 E.A.D. ___ (stating that “a petitioner may not simply reiterate comments made during

the public comment period, but must substantively confront the permit issuer’s

explanations in its response to comments document”); In re Peabody W. Coal Co.,

12 E.A.D. 22, 33 (EAB 2005) (same).

Although NVPH Petitioners’ comments on the draft permit

asserted that Shell had used background ambient air data in a manner

that understated the impact of its operations, see NVPH Comments at 7-

8, nowhere in these comments did Petitioner assert that Shell’s approach

conflicted with the Page Memo or that the Region had any obligation to

provide an explanation for its alleged departure from the Page Memo.47

Indeed, NVPH Petitioners’ comments recognized that, according to the

Fox Memo, Shell’s approach is appropriate in certain circumstances. Id.

at 9. The comments, however, did not assert any conflict between the

Page Memo and the Fox Memo nor is it clear to this Board that any such

conflict exists. Thus, this “battle of the memos” issue was not 48

preserved for review.
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This clause refers to what are commonly known as “PSD increments.” See,

49

e.g., Shell 2010, slip op. at 33 n.40, 15 E.A.D. ___ (discussing CAA section 165(a)(3)

requirements).

D. NVPH Petitioners Failed to Raise Below Their Contention That EPA

2

 Erred in Determining That the 1-Hour NO NAAQS Would Be Met 

 Without Separately Determining Compliance with the “Maximum 

2

 Allowable Concentration” of NO

Congress, in section 165 of the CAA, directs owners and

operators of proposed major emitting facilities to demonstrate that

emissions from the construction or operation of their facilities “will not

cause, or contribute to, air pollution in excess of any (A) maximum

allowable increase or maximum allowable concentration for any

pollutant in any area to which this part applies more than one time per

year, (B) national ambient air quality standard [NAAQS] in any air 49 

quality control region, or (C) any other applicable emission standard or

standard of performance under this chapter.” CAA § 165(a)(3),

42 U.S.C. § 7475(a)(3). EPA’s regulations implement this provision by

requiring, among other things, that each applicant for a PSD permit

conduct a “source impact analysis.” See 40 C.F.R. § 52.21(k). As part

of this analysis, the owner or operator of the proposed source or

modification must “demonstrate that allowable emission increases from

the proposed source or modification, in conjunction with all other

applicable emissions increases or reductions (including secondary

emissions), would not cause or contribute to air pollution in violation of:

(1) any national ambient air quality standard in any air quality control

region; or (2) any applicable maximum allowable increase over the

baseline concentration in any area.” Id.

NVPH Petitioners assert that the Region violated

section 165(a)(3) of the Act by failing to require that Shell demonstrate

2

that its NO emissions will not cause pollution in excess of the 100 ppb

maximum allowable concentration level. According to Petitioners,
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The Region fully and adequately responded to these comments. See Supp. 50

RTC at 68-69. In particular, the Region responded that “Shell’s approach for

demonst 2rating compliance with the 1-hour NO standard is consistent with the form of

2

the NAAQS and EPA guidance on demonstrating compliance with the 1-hour NO

NAAQS.” Id. at 68. The Supplemental Response to Comments states further that

(continued...)

[t]he unambiguouslanguage of Section 165(a)(3) of the

Clean Air Act requires a PSD applicant to demonstrate

compliance not only with the [NAAQS] overall, but

also with a separate, stricter standard for each pollutant

which is a component of the overall national ambient

quality standard: the “maximum allowable

concentration.” 42 U.S.C. § 7475(a)(3). While it may

be permissible for the Region to use the more lenient

“form” to gauge whether Shell’s pollution would lead to

a violation in an air quality region of the overall 1-hour

NO2 standard pursuant to section 165(a)(3)(B), section

165(a)(3)(A) makes plain that Shell also must

demonstrate compliance with the 100 ppb “maximum

allowable concentration.”

NVPH Petition at 10-11.

Because this issue was not raised during the public comment

period, it was not preserved for review. During the comment period,

NVPH Petitioners stated that the Permits may not be issued absent a

demonstration that emissions would not “cause or contribute to air

pollution in violation of any NAAQS or increment.” NVPH Comments

at 4. NVPH Petitioners also asserted that, in determining compliance

with the NAAQS, the Region erred by “allowing a proposed new source

to discount its highest project impacts.” Id. at 5 n.1. According to

NVPH Petitioners, “such an approach ignores both the importance of the

absolute value of the NAAQS standard - which must be set at the

requisite level to protect human health * * * as well as the PSD program

requirement that a proposed new source demonstrate that it will not

cause a NAAQS exceedance.” Id. Nowhere in their comments do

50
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(...continued) 50

“[a]lthough it is true that the modeling showed individual 1-hour impacts higher than the

100 ppb * 2 * * level of the 1-hour NO NAAQS, the 98 percentile point of the annual th

distribution of daily maximum 1-hour concentrations does not exceed 100 ppb * * * at

any location that constitutes ambient air.” Id. Petitioners do not make clear why the

Region’s responses to these comments were clearly erroneous or otherwise warrant Board

review of the Region’s position on “maximum available concentration.” See Guam

Waterworks, slip op. at 17-18, 15 E.A.D. ___.

 For an area that is not considered within the definition of “ambient air,” Shell 51

would not have to demonstrate compliance with the NAAQS and PSD increments. Supp.

RTC at 41.

NVPH Petitioners use the term “maximum allowable concentration” or

assert any specific violation of section 165(a)(3)(A). Specifically,

NVPH Petitioners’ comments did not contend that “maximum allowable

concentration” created a requirement separate from the requirement to

demonstrate that allowable emissions from the source, in conjunction

with other applicable emissions increases or reductions, would violate

2

the 1-hour NO NAAQS standards, or would exceed an allowable

increase over the area’s baseline concentration. Accordingly, the Board

denies review of this issue.

E. NVPH Petitioners Have Not Demonstrated That the Region Clearly

 Erred in Determining the Ambient Air Exemption

NVPH Petitioners allege that the Region clearly erred in

exempting the area within a 500 meter radius from the Discoverer from

the definition of “ambient air.” NVPH Petition at 27. This area is also 51

referred to throughout the record as the United States Coast Guard

(“USCG”) “safety zone.” See, e.g., Supp. RTC at 39-41. NVPH

Petitioners claim that the Region’s decision “contravenes both EPA’s

definition of ‘ambient air’ as well as EPA’s longstanding interpretation

of that regulation.” NVPH Petition at 28. In particular, they assert that

the Region’s 500 meter ambient air boundary fails to meet either of the

two criteria the Agency has previously used in evaluating the

appropriateness of an exemption. Id. at 28-30. According to NVPH

Petitioners, the Region’s decision essentially allows Shell to emit more
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 In their reply brief, NVPH Petitioners argue that the Region, in its response, 52

“asserts a new rationale and cites new authority to support its determination to exclude

from ‘ambient air’ the area within a radius of 500 meters from the Discoverer drillship.”

NVPH Reply Brief at 2. The Board agrees that a portion of the Region’s current

explanation for exempting the 500 meter safety zone was not explicitly included in the

Region’s Supplemental Response to Comments document (or supporting documents cited

therein). In particular, the Region did not rely on the argument that the very nature of the

conditions at the site – the remote location, the hostile environment, and the harsh and

rugged seas – constitute a natural barrier akin to a barrier generally required by the

“longstanding interpretation’s” second criterion. Compare Region Response at 18, 20

with Supp. RTC at 39-41. As the Board has stated in the past, a permit issuer may not

rely on justifications for permit conditions not included in the administrative record and

raised for the first time on appeal. E.g., In re Ash Grove Cement Co., 7 E.A.D. 387, 424

(EAB 1997); In re Chemical Waste Mgmt., 6 E.A.D. 144, 151-52 (EAB 1995); In re

Amoco Oil Co., 4 E.A.D. 954, 964 (EAB 1993); see also In re Austin Powder Co.,

6 E.A.D. 713, 718 (EAB 1997) (remanding so that the permit issuer could reconcile its

two rationales and provide a clear basis for the determination). Because the reasons that

are specified in the administrative record are sufficient, on their own, to support the

Region’s decision, the Board only considers the rationale that is included in the

Supplemental Response to Comments document and documents cited therein. 

With respect to the “new authorities” the Region cites, the Board may take

official notice of and consider any Agency statements made in publically available

Federal Register notices (published prior to the permit’s issuance), including those

Federal Register notices cited in the Region’s response. E.g., Russell City II,

slip op. at 47-48 (listing cases and examples of relevant non-record governmental

documents of which the Board has taken official notice).

pollution, and possibly with fewer controls, than would otherwise be

lawful. Id. at 27. 52

The CAA regulations define “ambient air” as “that portion of the

atmosphere, external to buildings, to which the general public has

access.” 40 C.F.R. § 50.1(e). Based on this definition, the Agency has,

on occasion, exempted certain areas from the definition of ambient air.

E.g., Letter from Steven C. Riva, Chief, Permitting Sec., U.S. EPA

Region 2, to Leon Sedefian, Air Pollution Meteorologist, N.Y. State

Dep’t of Env’t Conservation at 1-2 (Oct. 9, 2007) (A.R. BBB-25)

(“Broadwater Letter”); Letter from Douglas M. Costle, Adm’r, U.S.

EPA, to Sen. Jennings Randolf, Chairman, Env’t & Pub. Works Comm.,

at 1 (Dec. 19, 1980) (A.R. BBB-1) (“Costle Letter”); see also Letter
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 The precise terms and conditions of the Permits are as follows: 53

The permit does not authorize operation unless:

a. The Discoverer is subject to a currently effective safety zone

(continued...)

from Nancy Helm, Federal and Delegated Air Programs, U.S. EPA, to

John Kuterbach, Alaska Dep’t of Envtl. Quality, at 2 (Sept. 11, 2007)

(area exempt if certain conditions met) (“Helm Letter”). The parties

agree that the Agency’s “longstanding interpretation” of this exemption

is described in a letter signed by former EPA Administrator Douglas

Costle, which states that “the exemption from ambient air is available

only for the atmosphere over land owned or controlled by the source and

to which the public access is precluded by a fence or other physical

barriers.” Costle Letter at 1; NVPH Petition at 28 (quoting same letter);

Region Response at 18 (same); Shell Response at 15 (same); see also

Supp. RTC at 39 (same). The Costle Letter also indicates that, in

determining whether the exemption applies, the Agency reviews

“individual situations on a case-by-case basis.” Costle Letter at 1; see

also Approval and Promulgation of State Implementation Plans, 50 Fed.

Reg. 7056, 7057 (Feb. 20, 1985) (noting that, in considering ambient air

exemptions, “individual variations in the type of land and nature of the

limitation on access necessitate a case-by-case evaluation of the facts,

and application of the principles involved in this determination”).

Here, in its permitting decisions, the Region determined that, as

long as certain permit conditions were being met, it was appropriate to

set the ambient air boundary at a 500 meter radius from the Discoverer,

or, in other words, the 500 meter radius “safety zone” was exempt from

the ambient air definition. Supp. RTC at 39; Supp. Statement of Basis

at 26-27 & n.15. The terms and conditions upon which the Region relied

to exempt this area prohibit the operation of vessels and emissions units

unless (1) the USCG establishes a safety zone within at least 500 meters

from the center of the Discoverer, (2) members of the public are

precluded from entering the safety zone, and (3) Shell develops and

implements a “public access control program.” Chukchi Permit at 10; 53
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(...continued) 53

established by the [USCG] which encompasses an area within at

least 500 meters from the center point of the Discoverer and which

prohibits members of the public from entering this area except for

attending vessels or vessels authorized by the USCG (such area shall

be referred to as the “Safety Zone”); and

b. Shell has developed in writing and is implementing a public

access control program to:

 

• locate, identify, and intercept the general public by radio,

physical contact, or other reasonable measures to inform

the public that they are prohibited by Coast Guard

regulations from entering the Safety Zone; and

• communicate to the North Slope communities on a

periodic basis when exploration activities are expected to

begin and end at a drill site, the location of the drill site,

and any restrictions on activities in the vicinity of Shell’s

exploration operations.

Chukchi Permit at 10; Beaufort Permit at 12; accord Supp. RTC at 41.

Beaufort Permit at 12. The Region determined that, as long as these

safety zone and public access restriction permit conditions are complied

with, exempting the area within the safety zone from the ambient air

definition would generally be consistent with previous Agency

interpretations. Supp. RTC at 39-40. In so finding, the Region noted

that “[g]iven that the permitted activities occur over open water in the

Arctic, the[] criteria [for exemption included in the Costle Letter] must

be adapted to some extent when applied to this environment.” Id. In

specifically considering the applicability of the two exemption criteria,

the Region stated: 

Region 10 recognizes that Shell does not “own” the

areas of the Beaufort and Chukchi Seas on which the

Discoverer will be operating as might be the case for a

stationary source on land. Shell has a lease authorizing

the company to use these areas for the activities covered

by the permits. The Coast Guard safety zone establishes
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 NVPH Petitioners also contend that the Region’s approach is flawed because 54

it “is based upon an assumption that Shell will request, and the [USCG] will establish,

a safety zone restricting the passage of other vessels.” NVPH Petition at 27. This

argument is unpersuasive because it seemingly fails to recognize that, as the permit

conditions quoted in note 53 state, operation of vessels is prohibited unless and until

(continued...)

legal authority for excluding the general public from the

area inside the zone. EPA has previously recognized a

safety zone established by the Coast Guard as evidence

of sufficient ownership or control by a source over areas

over water so as to qualify as a boundary for defining

ambient air where that safety zone is monitored to pose

a barrier to public access. Letter from Steven C. Riva,

EPA Region 2, to Leon Sedefian, New York State

Department of Conservation, re: Ambient Air for the

Offshore LNG Broadwater Project, dated October 9,

2007 (Broadwater Letter).

To meet the second of the criteria applied by EPA and

ensure the source actually takes steps to preclude public

access, Shell proposed and Region 10 required as a

condition of operation under the permits that Shell

develop in writing and implement a public access

control program to locate, identify, and intercept the

general public by radio, physical contact, or other

reasonable measures to inform the public that they are

prohibited by Coast Guard regulations fromentering the

area within 500 meters of the Discoverer. Region 10

believes that, for the overwater locations in the arctic

environment at issue in these permitting actions, such a

program of monitoring and notification is sufficiently

similar to a fence or physical barrier on land such that

the area within the Coast Guard safety zone qualifies for

exclusion from ambient air. See Broadwater Letter at 2.

Supp. RTC at 40.

54
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(...continued) 54

these two conditions are met. See Chukchi Permit at 10; Beaufort Permit at 12.

 In support of their contention, NVPH Petitioners rely heavily on a previous 55

Agency determination that leased property could not be exempted from the definition of

ambient air because the lessee did not have control over access to its leased property

(only the landlord did). NVPH Petition at 29 (citing Helm Letter). Petitioners assert that

this onshore interpretation must apply equally to an OCS lease issued by BOEMRE. Id.

(continued...)

Upon consideration of the administrative record and the parties’

arguments, the Board concludes that Petitioners have not shown that the

Region clearly erred in its decision to exempt the area within the USCG

safety zone from the definition of “ambient air.” The Region, in its

Supplemental Response to Comments document, provided a reasonable

interpretation of the ambient air regulation and the Agency’s

“longstanding interpretation” of that regulation as applied in the OCS

context. As the Region rightly noted, the regulation and the Costle

Letter, by their very terms, were clearly written with overland situations

in mind. See 40 C.F.R. § 50.1(e) (referring to “buildings”); Costle Letter

at 1 (referring to “land” and “fences”). Furthermore, the Region’s

analysis was entirely consistent with a similar analysis undertaken by

Region 2 in which that Region determined that it was appropriate for a

permittee to use the USCG safety zone to define an ambient air boundary

around a proposed offshore liquefied natural gas facility. See

Broadwater Letter at 2. The Broadwater Letter, moreover, suggests that

Region 2’s analysis, as well as Region 10’s, is not unique, stating that

“[i]n previous permitting decisions involving * * * drilling operations,

EPA Regional offices have used the USCG’s safety zone as the boundary

for defining ambient air.” Id. at 2 (emphasis added). The letter explains

that the Agency has found that “[t]he ‘safety zone’ approach represents

a reasonable surrogate for a source’s fence or physical barrier and thus

could act as an ambient air boundary.” Id. Thus, while it is true, as

Petitioners allege, that the Agency has generally required the source to

own or control access over the area in question for that area to meet the

first criterion, NVPH Petition at 28-29, this requirement has been for

sources located on land. See, e.g., Helm Letter at 1 (referring to 55
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(...continued) 55

As the Petitioners themselves note, federal courts have found agency action to be

arbitrary when the agency’s “explanation ‘runs counter to the evidence,’” id. (quoting

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S.

29, 43 (1983)), and “‘the agency offer[s] insufficient reasons for treating similar

situations differently,’” id. (quoting Transactive Corp. v. United States, 91 F.3d 232, 237

(D.C. Cir. 1996)); see also FCC v. Fox Television Stations, Inc., 556 U.S. 502, __, 129 S.

Ct. 1800, 1810-11 (2009) (discussing standard of review of an agency's policy change).

Here, not only are the situations dissimilar enough to arguably not be governed by these

cases, but the Agency did offer persuasive reasons for treating the two situations

differently. 

 NVPH Petitioners’ arguments that the Region’s determination fails to meet 56

the second criteria because the safety zone “fails to effectuate a barrier that ‘precludes’

public access” are equally unpersuasive. NVPH Petition at 29. NVPH Petitioners focus

on the fact that the USCG will limit access to the area based on safety concerns rather

than for air quality considerations. Id. at 29-30. The important fact is that access within

the zone will be strictly limited, not the reason behind it. Moreover, NVPH Petitioners

do not address the other condition of the permit that the Region relied upon for its

ambient air boundary determination: the public access control program Shell is required

to implement. The Board does not find clear error in the Region’s conclusion that, based

on the USCG limiting access to the safety zone and the public access control program,

the latter of which will include notification to the local residents of the location of the

drilling and the fact that the public is restricted from the safety zone, the general public

will not have access to the area inside the safety zone.

possible exemption near coal-fired power plant); Memorandum from

Steven D. Page, Director, Office of Air Quality Planning & Standards,

U.S. EPA, to Reg’l Air Div. Dirs., U.S. EPA (June 22, 2007) (A.R. BBB21) (discussing the applicability of the exemption where a source locates

on “land” being leased to them by another source). As already noted, the

Region (and the Agency before it) reasonably determined that

application of the regulation and the interpretive letter to an “overwater”

situation requires some leeway. NVPH Petitioners’ reliance solely on

land-based exemption decisions is unpersuasive. Finally, as mentioned

56

above, the Agency has consistently taken the position that ambient air

exemption determinations are analyzed on a case-by-case basis.
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 GHGs are defined as “the aggregate group of six greenhouse gases: carbon 57

dioxide, nitrous oxide, methane, hydroflourocarbons, perflourocarbons, and sulfur

hexaflou 2ride.” 40 C.F.R. § 52.21(b)(49)(i). CO e represents the amount of GHGs

emitted and is computed by “[m]ultiplying the mass amount of emissions (tpy), for each

of the six greenhouse gases in the pollutant GHGs, by the gas’s associated global

warming potential published at Table A-1 subpart A of [40 C.F.R.] part 98 of this chapter

– Global Warming Potentials.” Id. at (b)(49)(ii)(a).

 The PSD regulations define PTE as: 58

[T]he maximum capacity of a stationary source to emit a pollutant

under its physical and operational design. Any physical or

operational limitation on the capacity of the source to emit a

pollutant, including air pollution control equipment and restrictions

(continued...)

For all the reasons stated above, NVPH Petitioners have not

shown that the Region clearly erred in its ambient air exemption

determination. Consequently, review based on this issue is denied.

F. ICAS Has Failed to Demonstrate That the Region Abused its 

 Discretion in Declining to Include Additional Permit Limitations on

 Methane Emissions

During the permitting process for the revised Discoverer

permits, Shell requested the inclusion of permit conditions limiting

greenhouse gas (“GHG”) emissions to below the 75,000 tons per year

(“tpy”) “subject to regulation” threshold. See 40 C.F.R.

§ 52.21(b)(49)(iv) (stating that beginning January 2, 2011, GHGs are

subject to regulation if a new source will emit or has the potential to emit

75,000 2tpy or more of carbon dioxide equivalent (“CO e”); PSD and

Title V GHG Tailoring Rule, 75 Fed. Reg. 31,514 (June 3, 2010). In

57

response to Shell’s request, the Region included permit conditions in the

revised permits limiting GHG emissions to 70,000 tpy (below the

regulatory threshold). As the Region explained:

Shell has requested that Region 10 include in each

permit limits on the [potential to emit (“PTE”)] [58]
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(...continued) 58

on hours of operation or on the type or amount of material

combusted, stored, or processed, shall be treated as part of its design

if the limitation or the effect it would have on emissions is federally

enforceable.

40 C.F.R. § 52.21(b)(4). Under the Clean Air Act, determining a source’s PTE is

necessary for the Agency to identify which sources are “major sources” subject to

regulation under the applicable PSD requirements. See, e.g., CAA § 165(a), 42 U.S.C.

§ 7475(a) (requiring PSD permits for any “major emitting facility”). PTE reflects a

source’s maximum emissions capacity considering the application of any emission control

equipment, or other capacity-limiting restrictions, that effectively and enforceably limit

emissions capacity. See Shell 2007, 13 E.A.D. at 365-66.

 In cases where a source’s PTE would otherwise be significant, the source may 59

request that PTE be limited to levels beneath applicable regulatory thresholds thereby

avoiding PSD review and application of BACT. Such a source is called a “synthetic

minor” source (in contrast to a “natural minor” whose emissions would not exceed

significance thresholds even when operating at full capacity without additional pollution

control equipment). EPA guidance defines the term “synthetic minor” as “air pollution

sources whose maximum capacity to emit air pollution under their physical and

operational design is large enough to exceed the major source threshold but [is] limited

by an enforceable emissions restriction that prevents this physical potential from being

realized.” Memorandum from John S. Seitz, Dir., Office of Air Quality Planning &

Standards, U.S. EPA, to Reg’l Air Dirs. and Counsels, U.S. EPA, Potential to Emit

Transition Policy for Part 71 Implementation in Indian Country 2 n.2 (Mar. 7, 1999).

GHGs such that it would not be subject to PSD for

GHGs. * * * The 2011 Revised Draft Permits therefore

include conditions that ensure that the PTE GHGs will

no 2t exceed 70,000 tpy CO e along with monitoring,

recordkeeping, and reporting requirements to ensure

that the conditions are enforceable as a practical matter.

 Supp. Statement of Basis at 29.59

The bulk of GHG emissions that the Permits authorize result

from the combustion of fuel in engines and boilers and the combustion

of waste in incinerators (hereinafter “combustion sources”). Id. at 29.

The Permits contain various operational, monitoring, and recordkeeping
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 As the Region points out in the supplemental RTC, the Permits contain 60

operational limits on the amount of time a source can operate, the amount of fuel and

waste combusted, and the type of fuel combusted to ensure compliance with GHG

emissions limitations. See Supp. RTC at 27 (citing Beaufort and Chukchi final permit

conditions B.2.1 - .3, B.2.5, B.6.2 - .3, B.5, and B.7). In addition, the supplemental RTC

states that the permits include “monitoring and recordkeeping requirements to document

when emissions must be counted towards these limits, testing requirements that establish

source-specific emission factors, monitoring requirements to track and document the fuel

and waste combusted, and maintenance requirements to ensure the emissions units are

properly operated and maintained.” Id. (citing Beaufort and Chukchi permit conditions

B.2.4, B.4, B.5.2, B.6.4, B.7.2, B.25, C.8, and C.9).

 As the Region stated in its Supplemental Statement of Basis: 61

When wells are drilled through porous, hydrocarbon bearing rock,

drilling fluids (mud) circulated through the drill bit can carry gaseous

hydrocarbons from the well back to drillship. These gases are

typically released as fugitive emissions when the mud is processed

for reuse on the drillship and stored on the Cuttings/Mud Disposal

Barge; however, some of the emissions pass through a vent.

Supp. Statement of Basis at 30.

 Condition B.6.1.3 in both the Beaufort and Chukchi Permits states: “To 62

account for mud off-gassing, monthly [methane] emissions from the drilling mud shall

be assumed to be 0.798 tons/month.” Beaufort Permit at 27; Chukchi Permit at 21.

requirements to ensure that GHG emissions from these sources do not

exceed the Permits’ 70,000 tpy limitation. In addition to combustion 60

sources, a relatively small amount of GHGs (0.12%) in the form of

methane are emitted from the drilling mud system (“DMS”). Id. at 30; 61

Supp. RTC at 29. For both Permits, the Region estimated an unrestricted

PTE for methane emissions from DMS operations of 0.798 tons per

month 2(the equivalent of 17 tons per month (“tpm”) CO e). Supp.

Statement of Basis at 30; RTC at 29. The Permits assume methane

em 2issions reflecting the sources’ full PTE of 17 tpm CO e without

imposing additional limitations or requiring pollution control

equipment. In determining compliance with the Permits’ overall GHG 62

limits, these methane emissions (reflecting the unrestricted PTE) are
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 ICAS states that it was unable to evaluate the basis for Shell’s estimates of 63

methane emissions from DMW operations because Shell did not release its estimates until

after the close of the comment period. ICAS Petition at 19 n.9. However, in response

to comments expressing concerns regarding the PTE calculation for methane, the Region

stated the following:

Region 10 requested Shell to re-examine its estimate and provide the

well information previously-claimed by Shell as confidential to

confirm that the estimate of methane potential to emit it previously

provided to Region 10 is a reasonable upper-bound estimation. See

email from Susan Childs, Shell, to Doug Hardesty, Region 10, re:

Shell Mud and Cuttings Degassing Emissions, dated September 16,

2011. The information provided shows that Shell relied on well

pressure, temperature, porosity, and depth of the hydrocarbon

bearing zone from past Arctic exploration projects in its estimation.

Supp. RTC at 29. Thus, ICAS had the opportunity to evaluate the basis for Shell’s PTE

estimates and the Region’s assessment of those estimates in preparing its appeal to this

Board. See In re Cape Wind Assoc., LLC, OCS Appeal No. 11-01, slip op. at 8, 10

(EAB May 20, 2011), 15 E.A.D. ___ (permit issuer is authorized to supplement the

administrative record with new information and to revise its analysis (citing 40 C.F.R.

§§ 124.17(a) (requiring the response to comments to identify changesto the draft permit

and to include a response to all significant comments), .17(b) (authorizing EPA permit

issuers to add new material to the administrative record in response to comments), .18(b)

(defining the administrative record))); see also Dow Agrosciences v. Nat’l Marine

Fisheries Serv., No. 09 Civ. 00824, at *6 (D. Md. Oct. 31, 2011) (allowing agency to

supplement the administrative record where the additional information serves to

(continued...)

added to emissions from combustion sources. Supp. Statement of Basis

at 30.

In its petition for review, ICAS asserts that the Region erred by

failing to include permit conditions containing enforceable permit

limitations for emissions of methane from the DMS, such as monitoring

requirements or production limits on the amount of mud processed.

ICAS Petition at 17-18. In support of this assertion, ICAS cites to EPA

guidance as well as prior Board cases requiring that owner requested

limitations on PTE be enforceable as a practicable matter. Id. at 17-20.

Upon consideration, the Board concludes that ICAS has failed to

establish that review is warranted.63
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(...continued) 63

illuminate or explain matters in the record).

 In its reply brief, ICAS asserts that the Region changed its rationale during 64

these appeal proceedings for declining to include additional permit conditions regulating

methane emissions. The Board disagrees. In its response to comments on this issue, the

Region stated, in part, that emissions were calculated based on the maximum expected

capacity over the course of the drilling season and that the Permits, as written, were

sufficient to ensure compliance with GHG limits. See Supp. RTC at 28. The Board finds

that the Region’s response in these proceedings is consistent with this rationale.

As ICAS correctly states, and as this Board has previously held,

owner requested limits on a source’s PTE must be legally and practically

enforceable. See In re Peabody W. Coal Co., 12 E.A.D. 22, 30-31

(EAB 2005). As stated above, however, the Permits in this case do not

include owner requested limits on PTE for methane emissions. Rather,

as the Region stated in its Supplemental Response to Comments

document, methane emissions were assumed to occur at the sources’

maximum expected capacity over the five-month drilling season without

pollution control equipment or other operational restrictions. See Supp.

RTC at 28. The Region assumed methane emissions reflecting the

sources’ full PTE for the five-month drilling season (0.798 tons per

month), and the Permits count these emissions towards the total GHG

limitation of 70,000 tpy. See Supp. Statement of Basis at 30 (stating that

Shell has agreed to count all methane emissions occurring during fivemonth drilling season in measuring the sources’ total GHG emissions).

The Region determined that because these unrestricted emissions of

methane (when combined with GHG emissions from combustion

sources) would not result in an exceedance of the Permits’ total GHG

emissions limit, additional permitting restriction limits were not

required.

64

Under these circumstances, ICAS’s reliance on the requirement

that permits include conditions ensuring the enforceability of limitations

on a source’s PTE is misplaced, as the Permits do not contain owner

requested limits on methane emissions or otherwise limit the sources’
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See Memorandum from Terrell E. Hunt, Assoc. Enforcement Counsel, Office 65

of Enforcement & Compliance Monitoring, U.S. EPA, & John S. Seitz, Dir., Office of

Air Quality Planning & Standards, U.S. EPA, to Reg’l Counsels & Air Dirs., U.S. EPA,

Guidance on Limiting Potential to Emit in New Source Permitting (June 13, 1989)

(stating that in order to limit PTE permits “must contain a production or operational

limitation in addition to the emissions limitation in cases where the emissions limitation

does not reflect maximum emissions of the source operating at full design capacity

without pollution control equipment”). 

 As stated in the supplemental RTC, GHG emissions from the DMS represent 66

only 0.12% of total GHG emissions allowed under the permits (70,000 tpy). Supp. RTC

at 29. As stated above, the Permits contain enforceable operational, monitoring, and

recordkeeping requirements for combustion sources of GHGs (constituting the bulk of

GHG emissions). The ICAS Petition does not contest the enforceability of these permit

conditions.

PTE from DMS operations. Because the Permits count all methane 65

emissions from DMS operations (to the full extent of the sources’ PTE)

towards the Permits’ total allowable GHG emissions, the Board 66

concludes that the Region did not abuse its discretion in determining that

additional permit conditions (otherwise necessary to ensure the
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 In a similar vein, ICAS asserts that the Permits’ overall limit on GHG 67

em 2issions from Shell’s operations of 70,000 tpy of CO e is insufficient by itself to ensure

the enforceability of methane emission limits or ensure that “any other greenhouse gas

emissions are capped.” ICAS Petition at 20. According to ICAS, “[t]his is because

‘limits’ that fail to restrict production or operations are simply not enforceable.” Id.

However, because the permit assumes methane emissions at the sources’ full and

unrestricted PTE, the Region determined that additional operational or production limits

were not required. See Supp. RTC at 28-29. As stated above, ICAS has failed to

establish that the Region’s determination was clearly erroneous or otherwise warrants

review. Further, contraryto ICAS’s assertion, thePermitsinclude enforceable conditions

ensuring 2 compliance with the 70,000 tpy cap on CO e emissions. See id. at 27-29.

 The Board notes further that the Region’s Supplemental Response to

Comments document contains a detailed response to the assertion that permit conditions

2

restricting the sources’ PTE for CO e are insufficient to ensure compliance with the

Permits’ 70,000 tpy GHG limit. See id. at 27-29. Nothing in the petition or the record

on appeal indicates why the Region’s response was clearly erroneous or otherwise

warrants review by this Board, nor does the Board find anything erroneous in the

Region’s response. See, e.g., In re Guam Waterworks Auth., NPDES Appeal Nos. 09-

15 & 09-16, slip op. at 17-18 (Nov. 16, 2011), 15 E.A.D. ___.

 To the extent that ICAS is objecting to the PTE calculation itself, ICAS has 68

failed to establish that review is warranted. The Region fully and adequately responded

to comments questioning the PTE calculation. In particular, the Region stated, in part:

Methane emissions from the [DMS] are subject to an operational

restriction limiting operations to the five months between July and

November and this operational limit is accompanied by monitoring

in the form of recordkeeping. [(Citing Condition B.3 in both

permit)]. In this case, Shell calculated the potential methane

emissions from the drilling mud system based upon the maximum

expected capacity over the five-month period of operation taking into

consideration inherent physical limitations and actual well data.

Relying upon reasonable projections of potential emissions where

inherent physical limitations exist is consistent with EPA’s guidance

for grain terminals. See Memorandum from John Seitz, EPA, re:

Calculating Potential to Emit (PTE) and Other Guidance for Grain

Handling Terminals, dated November 14, 1995.

(continued...)

enforceability of PTE limitations) were not required in these Permits.67

Accordingly, the Board denies review of this issue.68
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(...continued) 68

* * * *

In addition, Region 10 assumed that what Shell estimated as its

emissions over the five month drilling season would occur during

each of the five months (thus increasing the potential to emit from

this source by a factor of five) to provide a wide margin of safety in

the estimate of potential to emit for the drilling mud system. For

comparison purposes, EPA recommends grain terminals apply a

safety factor of 1.2 to the highest of the previous five years of

throughput to constitute a realistic upper-bound potential to emit.

See Memorandum from John Seitz, EPA, re: Calculating Potential

to Emit (PTE) and Other Guidance for Grain Handling Terminals,

dated November 14, 1995, at 5. It is important to emphasize that,

even with these conservative assumptions, the GHG emissions (85

2

tons per year CO e) from the drilling mud system represent only

0.12% of 2the total GHG emissions (70,000 tons per year CO e)

allowed under each permit.

Supp. RTC at 28. Nothing in the petition convinces the Board that the Region’s technical

determinations on this issue were clearly erroneous or otherwise warrant review. See,

e.g., Peabody, 12 E.A.D. at 41 (petitioner seeking review of issues fundamentally

technical in nature bears a particularly heavy burden because the Board generally defers

to the permit issuer on questions of technical judgment).

G. ICAS Has Failed to Demonstrate That the Region Clearly Erred or

 Abused Its Discretion in Only Providing Thirty Days to Comment on

 the Concurrently Issued Draft Chukchi and Beaufort Permits During

 the Remand Period

ICAS claims that the Region “committed clear legal error by

failing to provide the public an adequate opportunity to comment” on the

draft permits on remand. ICAS Petition at 7. More specifically, ICAS

alleges that the Region failed to meet the part 124 procedural

requirements that require permit issuers to “allow at least 30 days for

public comment” on draft permits. Id. (citing 40 C.F.R. § 124.10(b))

(emphasis added by Petitioners). Although ICAS acknowledges that the

comment periods for both the Chukchi and the Beaufort Permits ran from

July 6 to August 5, 2011, an interval of thirty days, ICAS contends that,

because the comment periods were entirely concurrent and also partially
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 The Region issued two other draft air permits for public comment around this 69

same time: (1) a permit for Shell to operate the Kulluk drillship in the Beaufort Sea and

(2) a permit for ConocoPhillips permit to operate a jackup drill rig in the Chukchi Sea.

ICAS Petition at 8-9; Supp. RTC at 11-12. 

coincided with the comment periodsfor two other proposed air permits,69

the Region “at most provided the public with 15 days to comment on

each major source permit for the Discoverer.” Id. This is because,

according to ICAS, in reality, “local communities only have the capacity

to comment on one air permit at a time.” Id. at 8 tbl.1. ICAS notes that

the Region had previously provided non-overlapping forty and sixty-day

comment periods when it had issued earlier draft versions of these same

permits. Id. at 9 & n.3; see also Supp. RTC at 11. ICAS also claims that

“the short and overlapping comment periods * * * deprived them of a

meaningful opportunity to comment on Shell’s new air modeling

results.” ICAS Petition at 10.

In addition, ICAS questions the Region’s rationale for denying

Petitioners’ request “to hold non-overlapping comment periods on the

OCS permits and to provide 45 days to comment on each permit,” a

request ICAS made before any of the draft permits were issued. Id. at 9;

see id. attach. 11 (Letter from Harry Brower, AEWC Chariman, et al., to

Doug Hardesty, Air Permits Project Manager, U.S. EPA Region 10

(June 15, 2011) (DDD-31)) (AEWC and ICAS request for nonoverlapping comment periods); id. attach. 12 (Letter from Richard

Albright, Director, Office of Air, Waste, & Toxics, U.S. EPA Region 10,

to Harry Brower, AEWC Chairman, et al. (July 21, 2011) (DDD-58))

(EPA response) (“Region 10 Letter”). ICAS argues that the Region’s

offer to meet with them during the comment period was “not equivalent

to providing sufficient time for public review.” Id. at 10.

The part 124 procedural regulation governing public notices and

public comment periods specifically provides that “[p]ublic notice of the

preparation of a draft permit * * * shall allow at least 30 days for public

comment.” 40 C.F.R. § 124.10(b)(1). The regulation, therefore,

establishes a minimum comment period length of thirty days but allows
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the permit issuer, in its discretion, to grant a longer comment period. Id.;

accord In re Russell City Energy Ctr. (“Russell City I”), PSD Appeal

No. 08-01, slip op. at 7 n.6 (EAB July 29, 2008), 14 E.A.D. __; In re

Genesee Power Station, 4 E.A.D. 832, 841 (EAB 1993) (public comment

period “only required to last 30 days”). 

In this case, the Region provided thirty days for public comment

for each of the permits, albeit concurrent thirty-day periods. The Region

therefore provided the regulatory minimum comment period for the draft

permits. ICAS does not point to any other statutory or regulatory

provision that requires the Agency to provide a longer comment period

when the Agency issues more than one permit in a given month. To the

contrary, the relevant regulation authorizes the Agency to issue a single

public notice to “describe more than one permit or permit actions,”

40 C.F.R. § 124.10 (a)(3), but does not specify, or even mention the

possibility of, a different time frame for public comment when

concurrent permits are issued. ICAS’s attempt to recalculate the length

of the comment periods based on an unexplained mathematical formula

involving the number and lengths of other comment periods is

unconvincing. See ICAS Petition at 8. Accordingly, ICAS has failed to

demonstrate that the Region “committed clear legal error” in establishing

thirty-day comment periods for these two permits. See Conn. Light &

Power Co. v. NRC, 673 F.2d 525, 534 (D.C. Cir. 1982) (upholding

agency’s selection of the minimum comment period as reasonable and

observing that “[n]either statute nor regulation mandates that the agency

do more”); Conference of State Bank Supervisors v. Office of Thrift

Supervision, 792 F.Supp. 837, 844 (D.D.C. 1992) (denying claim that

comment period should have been longer where statute did not require

agency to provide more than thirty-day comment period and thirty days

was not unreasonable); see also Russell City II, slip op. at 127-31,

15 E.A.D. __ (denying review of a procedural error claim where

petitioners fail to point to a part 124 procedural regulation that was

violated).

Some of ICAS’s arguments can also be read as challenging the

Region’s decision to select thirty days rather than a longer time period
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for these comment periods under 40 C.F.R. § 124.10(b)(1) or as

challenging the Region’s decision to deny ICAS’s request for a longer

comment period. Because both of these decisions were discretionary,

challenges to them are, in essence, claims that the Region abused its

discretion. E.g.,In re Guam Waterworks Auth., NPDES Appeal Nos. 09-

15 & 09-16, slip op. at 9 n.7 (EAB Nov. 16, 2011), 15 E.A.D. __

(explaining Board’s standard in reviewing claims involving a permit

issuer’s exercise of discretion); In re Desert Rock Energy Co., PSD

Appeal Nos. 08-03 through 08-06, slip op. at 65 (Sept. 24, 2009),

14 E.A.D. __ (using an abuse of discretion standard where the permit

issuer had “broad discretion” in making the challenged determination).

The Board considers this challenge next.

The Region, in its Supplemental Response to Comments

document, provided a lengthy, well-reasoned explanation for its

establishment ofthirty-day comment periods and for its denial of ICAS’s

request for longer, non-concurrent comment periods. The Region

generally stated that, “[i]n light of the prior public comment periods and

the fact that comment on the 2011 Revised Draft Permits was limited in

scope, [it had] determined that a thirty-day comment period was

appropriate.” Supp. RTC at 11. The Region further explained that the

thirty-day public comment period “was not intended to reopen public

comment on the entirety of the 2011 Revised Draft Permits, but to solicit

public comment on the issues addressed by the [Board], the issues

otherwise raised in the 2010 Permit petitions but not addressed in

issuance of these revised permits, the revised aspects of the permits, and

the new modeling algorithms.” Id. Finally, the Region pointed out that

it had received more than 14,000 comments during the thirty-day

comment period, and that “[t]he volume of comments received and the

substantive issues raised by commenters on the technically and legally

complex components of the permits and modeling algorithms support the

Region’s determination that the thirty-day period provided adequate time

for the public to provide informed and meaningful comment on the 2011

Revised Draft Permits.” Id.
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In fact, the Region ultimately extended the comment period for the 70

ConocoPhillips permit to sixty days and the comment period for the Shell Kulluk permit

to forty-six days. Supp. RTC at 12; ICAS Petition at 8 tbl. 1.

Furthermore, in responding to comments specifically raising

concerns about the overlapping comment periods, the Region explained

that it had “extended the comment period on the ConocoPhillips draft

permit for an additional two weeks,” and that “[t]his * * * addresses to

some extent the commenters’ concern about overlapping comment

periods.” Id. at 12-13. The Region also explained that, “[t]o facilitate

70

public comment, [it had] made available a redline-strikeout version of

the 2011 Revised Draft Permits so commenters could easily identify the

specific changes made to the original 2010 Permits. The Supplemental

Statement of Basis for the 2011 Revised Draft Permits also includes a

section devoted exclusively to explaining the key revisions to the

permits.” Id. at 13 (referring to Supp. Statement of Basis § 1.4 (entitled

“Key Changes in 2011 Revised Draft Permits”)). The Region pointed

out that there were a number of identical issues between the two permits,

including reliance on the same model and algorithms. See id. The

Region additionally noted that it had informed ICAS of the upcoming

public comment period for the revised draft permits during informational

meetings “held three weeks prior to the start of the comment period.” Id.

at 14. Finally, the Region stated that, while it agreed that “some aspects”

of the 2011 draft permits are “technically and legally complex,” the

number and substance of the comments submitted “demonstrate that the

public was able to review, evaluate, and comment on many of the

complex issues during the comment period provided.” Id. at 13.

In responding to the Region’s rationale, ICAS argues that these

permits raise “an important issue for local communities” and that the

similarities between the two permits “do not justify holding overlapping

permit periods.” ICAS Petition at 9. The Board understands ICAS’s

desire for a longer comment period for these permits. A permit issuer

must nonetheless balance the public’s desire for a lengthy comment

period against other factors, including, for example, the need for

expedited review of NSRpermits, the length oftime the particular permit
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 The Board is unpersuaded by ICAS’s argument that it had difficulty locating 71

an expert to review the air modeling. See ICAS Petition at 10. As the Region indicated

in its Supplemental Response to Comments, Supp. RTC at 11, other commenters

provided substantive, technical comments on the air modeling, which suggests that the

comment period was sufficient to allow opportunity for meaningful comment. See Fla.

Power & Light Co. v. United States, 846 F.2d 765, 772 (D.C. Cir. 1988) (upholding a

short comment period as sufficient where the agency had received numerous comments,

some lengthy, and the comments had had a “measurable impact” on the final rule); State

Bank Supervisors, 792 F. Supp. at 844 (holding length of comment period not

unreasonable especially in light of the comments that plaintiffs and other parties

submitted ). Furthermore, as Region points out, Supp. RTC at 14, ICAS knew what

issues would be considered on remand, and it had been given approximately three weeks

advance notice of the impending comment period.

or related activity has been under consideration, and its current posture.

As the Board has previously noted, “NSR permits are time-sensitive.”

Standing Order at 1; see also id. at 2-6 (providing procedures to

“facilitate expeditious resolution of NSRappeals”). The CAA itself also

indicates that NSR permits are time-sensitive. See CWA § 165(c),

42 U.S.C. § 7475(c) (“Any completed permit application * * * to which

this part applies shall be granted or denied not later than one year after

the date of filing of such completed application.”). These two permits

have been under consideration for some time, and several comment

periods have already been provided. In addition, the scope of review

during the comment period was of a limited nature: review was confined

to the issues the Board had remanded and the revisions to the permit the

Region had made in response. See, e.g., Supp. Statement of Basis at 12

(“[O]nly the conditions of the 2011 Revised Draft Permits that are

proposed for revision in this proceeding and the information and analysis

supporting those changes are open for public comment.”). Furthermore,

the Region was aware, as is the Board, that delays in issuing OCS

permits in the Arctic can lead to delays in exploration because of the

short drilling seasons. Region 10 Letter at 1; Supp. RTC at 12. It is

clear from the administrative record that the Region appropriately

balanced the conflicting considerations in deciding on the length of the

comment periods and in denying requests for longer periods. ICAS has

not demonstrated otherwise and has therefore failed to show that the 71

Region abused its discretion in either selecting thirty-day comment
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periods or in denying ICAS’s request for longer, non-concurrent

comment periods. Therefore, the Board denies review of this issue.

VII. Conclusion & Order

For all of the reasons provided, the Board denies review of the

Permits.

So ordered. 
CERTIFICATE OF SERVICE 

I hereby certify that copies of the forgoing Order Denying Review in the matter of Shell 

Gulf of Mexico, Inc., and Shell Offshore, Inc., OCS Appeal Nos. 11-02, 11-03, 11-04 & 11-08, 

were sent to the following persons in the manner indicated: 

By First Class U.S. Mail: 

Duane A. Siler 

Sarah C. Bordelon 

Tony G. Mendoza 

Crowell & Moring LLP 

1001 Pennsylvania Ave. NW 

Washington, DC 20004 

Telephone: 202-624-2500 

Facsimile: 202-628-5116 

dsiler@crowell.com 

sbordelon@crowell.com 

tmendoza@crowell.com 

Colin O'Brien 

Eric Jorgensen 

EARTHJUSTICE 

325 Fourth Street 

Juneau, AK 99801 

Telephone: (907) 500-7134 

Facsimile: (907) 463-5891 

co brien@earthjustice.org 

ej orgensen@earthjustice.org 

Daniel Lum 

P.O. Box 70169 

Fairbanks, AK 99707 

Telephone: (907) 799-1491 

eskimo. whaler@yahoo.com 

Tanya Sanerib 

Christopher Winter 

Crag Law Center 

917 SW Oak Street, Suite 417 

Portland, OR 97205 

Telephone: (503) 525-2722 

Facsimile: (503) 296-5454 

tanya@crag.org 

chris@crag.org 

David Hobstetter 

Erik Grafe 

EARTHJUSTICE 

441 W. 5th Avenue, Suite 301 

Anchorage, AK 99501 

Telephone: (907) 277-2500 

Facsimile: (907) 277-1390 

dhobstetter@earthjustice.org 

egrafe@earthjustice.org 

Donna Arvelo 

dmzaug25@optonline.net 
By EPA Pouch Mail: 

Julie Vergeront 

Alexander Fidis 

Office of Regional Counsel 

U.S. EPA, Region 10 

1200 Sixth Avenue, Suite 900 (ORC-158) 

Seattle, WA 98101 

Telephone: (206) 553-1497 (JV) 

Telephone: (206) 553-4710 (AF) 

Facsimile: (206) 553-1762 

vergeront.julie@epa.gov 

fidis.alexander@epa.gov 

By EPA Interoffice Mail: 

David Coursen 

Office of General Counsel 

U.S. Environmental Protection Agency 

1200 Pennsylvania Ave. NW (2322A) 

Washington, DC 20460 

Telephone: (202) 564-0781 

Facsimile: (202) 501-0644 

coursen.david@epa.gov 

Dated: ,lAN 1 2 2012