p.1 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

56) ll-K-13 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 56 of 142 
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BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY . n ,--,-r-| 

WASHINGTON, D.C. 

In the Matter of: 

Hadson Power 12 — Altavista 

Applicant 

DAPC Registration No. 30859 

41^251 

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;«***>. -£-*-x*. 77^717 :r ! 

PSD Appea l Nos. 90-2 , 

90-3 , 90-4 , & 90-5 

fr-fO-5-) 

ORDER DENYING REVIEW 

Larry Hendricks (Appeal No. 90-2), Herbert Bolin (Appeal No. 

90-3), Lena C*. Frazier (Appeal No. 90-4), and Roy E. St. John, 

Jr. (Appeal No. 90-5) filed separate requests for review of a 

Prevention of Significant Deterioration (PSD) permit that authorizes construction of a steam electricity cogenerating facility at 

Altavista, Virginia. The Virginia Department of Air Pollution 

Control (DAPC) issued the permit to the applicant, Hadson Power 

12, on February 21, 1990, pursuant to a delegation of authority 

from EPA Region III, Philadelphia, Pennsylvania. Because of the 

delegation, DAPC's permit determination is subject to the review 

provisions of 40 CFR §124.19, and any permit it issues will be an 

EPA-issued permit for purposes of federal law. 40 CFR §124.41; 

45 Fed. Reg. 33,413 (May 19, 1980). 

DAPC responded to the petitions on May 25, 1990, arguing in 

each instance that the grounds for review alleged in the 

petitions did not meet the threshold for review established by 

the rules governing this proceeding. DAPC also noted that in 
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numerous instances the issues raised by two of the petitioners 

(Bolin and St. John) had not been raised at the public hearing or 

during the public comment period and, therefore, were not 

eligible for consideration on appeal. DAPC is correct on both 

counts: 

First, a petition must contain a statement demonstrating 

"that any issues being raised were raised during the public 

comment period (including any public hearing) to the extent 

required by these regulations * * *." 40 CFR §124.19(a). The 

latter, in turn, require participants in. the permit proceedings 

to "raise all"reasonably ascertainable issues and submit all 

reasonably available arguments supporting their position by the 

close of the public comment period * * *." 40 CFR §124.13. 

Collectively, the purpose of these regulations is to ensure that 

all matters are first raised with the permit issuer. 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. As explained in the preamble to the 

regulations, "[t]he later stages [of the permit proceedings] are 

appellate in nature and new issues should not be raised on 

appeal." 45 Fed. Reg. 33411 (discussing §124.13). None of the 

petitions contains the requisite statement under 40 CFR 

§124.19(a), and many of the issues raised by two of the 

petitioners, as DAPC correctly alleges, had not in fact been 

raised with the permit issuer in a timely manner. Those issues 
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(identified in DAPC's response to the petitions) are therefore 

ineligible for review on appeal. 

Second, as to the few issues that satisfy the foregoing 

requirements, DAPC is correct in asserting that they do not meet 

the threshold for review. Under the rules, there is no appeal as 

of right from the permit determination. Ordinarily, a petition 

for review of a PSD permit determination is not granted unless it 

is based on a clearly erroneous finding of fact or conclusion of 

law, or involves an important matter of policy or exercise of 

discretion that warrants review. The preamble to the regulations 

states that "this power of review should be only sparingly 

exercised," and "most permit conditions should be finally 

determined at the Regional [state] level * * *." 45 Fed. Reg. 

33,412 (May 19, 1980). The burden of demonstrating that the 

permit conditions should be reviewed is therefore on the petitioner. Upon consideration of the petitions, and for the reasons 

stated in DAPC's response, I conclude that none of the 

petitioners has met his or her burden, respectively, of showing 

that the permit should be reviewed. 

Accordingly, for the reasons stated above, review of DAPC's 

permit determination is denied. 

So ordered. 

Dated: JUL 3 0 1990 P^LJU^V^S 

William K. IteiUjpT*' 

Administrator 
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CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Order Denying 

Review, PSD Appeal Nos. 90-2, 90-3, 90-4, and 90-5, were mailed 

to the following in the manner indicated. 

First Class Mail 

Postage Prepaid: 

Wallace N. Davis 

Executive Director 

Virginia Department of 

Air Pollution Control 

Ninth Street Office Building 

200-2003 N. North Street 

Richmond, VA 23219 

Marcia Mulkey 

Regional Counsel 

U.S. EPA - Region III 

841 Chestnut Street 

Philadelphia, PA 19107 

Herbert J. Bolin 

1614 Avondale Dr 

Altavista, VA 24517 

Larry Hendricks 

1114, 8th St. 

Altavista, VA 24517 

Lena C. Frazier 

1117 7th St. 

Altavista, VA 24517 

Roy E. St. John, Jr. 

Rt. 3 Box 400 

Hurt, Va 24563 

Douglas G. White 

Assistant Regional Counsel 

U.S. EPA - Region III 

841 Chestnut Building 

Philadelphia, PA 19107 

Dated: 

JUL 3 1 1990 

OlfoMj-P. A 

for . Brenda H. Selden, Secretary 

to the Chief Judicial Officer 

secret