AUG - 2 2013 


Clerk. Environ 

INITIALS 

(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: ) 

) 

Pio Pieo Energy Center ) PSD Appeal Nos. 12-04 

) through 12-06 

PSD Pennit No. SD 11-01 ) 

) 

-------------­ ) 

[Decided August 2, 2013] 

ORDER REMANDING IN PARTAND 

DENYINGREVIEWINPART 

Before Environmental Appeals Judges Leslye M. Fraser, 

Randolph L Hill, and Kathie A. Stein. 
IN RE PIO PICO ENERGY CENTER

PSD Appeal Nos. 12-04 through 12-06

ORDER REMANDING IN PART AND 

DENYING REVIEW IN PART

Decided August 2, 2013

Syllabus

Helping Hand Tools, Sierra Club, and Mr. Rob Simpson (“Petitioners”) each

petition the Environmental Appeals Board (“Board”) to review a prevention of significant

deterioration (“PSD”) permit (“Permit”) that Region 9 (“Region”) of the United States

Environmental Protection Agency issued to the Pio Pico Energy Center (“Pio Pico”)

pursuant to the Clean Air Act. The Permit authorizes Pio Pico to construct and operate

a 300-megawatt natural gas-fired peaking and/or intermediate load-shaping power plant

(“Facility”) in Otay Mesa, California.

The petitions challenge the Region’s issuance of, as well as several conditions

in, the Permit. Collectively, Petitioners raise eleven issues for Board resolution. These

include challenges to the Region’s acceptance of late comments; the adequacy of the

Region’s responses to comments; the Region’s decision to eliminate combined-cycle gas

turbines as a control technology in its best available control technology (“BACT”)

analysis for greenhouse gases; the adequacy of the BACT emission limits the Region

selected for greenhouse gases and for particulate matter (“PM”); the Region’s conclusion

that carbon monoxide emissions fromthe Facility are not subject to the PSD program; the

location of air qualitymonitors; and theRegion’s decisions not to use emission reduction

credits to mitigate air pollutants. In addition, two of the petitioners ask the Board to

remand the Permit to the Region for a reassessment of the “need” for the Facility

following a recent California Public Utilities Commission (“CPUC”) decision denying

the local utility the authority to enter into a long-termpower purchase agreement with Pio

Pico. 

Held: The Board remands the permit in part and directs the Region to prepare

a revised PM BACT analysis and reopen the public comment period to provide the public

with an opportunity to comment on it. The Board denies review of all other challenges.

(1) The Region’s Analysis of the “Need” for the Facility: Mr. Simpson and Sierra

Club have not demonstrated that the Region abused its discretion in electing

not to perform an independent analysis of the “need” for the Facility. The

Region had the discretion, but was not required, to conduct an independent

analysis of the “need” for the Facility, and the Region also had the discretion,
2 PIO PICO ENERGY CENTER

but was not required, to rely on the State of California agency’s assessment of

need. In this case, because the Region exercised its discretion not to conduct

a needs assessment and not to rely on any State of California agency’s

determination of need, the recent CPUC decision does not affect the Region’s

conclusion.

(2) The Region’s Acceptance of Late Comments from One Individual: Under the

unique context of this case, the Region’s decision to allow late comments from

Mr. Sarvey on the Environmental Justice Analysis was justified, and was not

an abuse of the Region’s inherent discretion to accept late comments in a

permit proceeding without reopening the public comment period. Mr. Simpson

has not demonstrated otherwise.

(3) The Region’s Response to a Series of Forwarded E-mails and Attachments:

Mr. Simpson has not demonstrated that the Region clearly erred or abused its

discretion by not providing detailed, individual responses to the series of

forwarded e-mails and attachments Mr. Simpson submitted during the public

comment period where he did not explain their relevance or applicability to this

PSD permit proceeding.

(4) The Region’s Consideration of Air Quality Impacts at Nearby Correctional

Facilities: Helping Hands Tools has not demonstrated that the Region failed to

adequately address comments raising concerns about potential air quality

impacts on inmate populations at nearby correctional facilities. The Region’s

response to comments clearly explains why additional air quality monitoring

is not required to determine background concentrations or to fulfill its

obligations under Executive Order 12898.

(5) The Region’s Elimination of Combined-Cycle Gas Turbines at Step 2 of Its

BACT Analysis for Greenhouse Gases: Mr. Simpson and Sierra Club have not

demonstrated that the Region clearly erred in eliminating combined-cycle gas

turbines in step 2 of its BACT analysis for greenhouse gases, or that the issue

otherwise warrants review or remand. In particular, the Board concludes that

the Region did not define “source type” too narrowly in step 2, nor did the

Region clearly err when it referenced the power purchase agreement and related

documents in its analysis.

(6) The Region’s Selection of a Greenhouse Gas BACT Emission Limit at Fifty

Percent Load: Sierra Club has not demonstrated that the Region failed to use

its considered judgment when selecting a greenhouse gas BACT emission limit

for the Facility’s emissions when operating at fifty percent load. The Region’s

decision to select an emission limit that is not the most stringent is consistent

with the definition of BACT and Board precedent, both of which afford the

Region the discretion to set the emission limit at a level that ensures the

Facility can achieve consistent compliance over its lifetime.
PIO PICO ENERGY CENTER 3

(7) The Region’s Use of Safety Factors (or Compliance Margins) in Its BACT

Analysis for Greenhouse Gases: Sierra Club has not demonstrated that the

Region failed to use its considered judgment when it incorporated safety

factors, or compliance margins, into the greenhouse gas BACT emission limit.

The Region provided adequate factual support for its decision to include such

factors in the emission limit, and Sierra Club’s petition for review failed to

address the Region’s rationale in the administrative record for including those

factors.

(8) The Region’s Selection of BACT for PM: The record does not reflect the

Region’s considered judgment in selecting the BACT emission limits for PM.

The Region, in conducting its PM BACT analysis, failed to adequately

consider significant information in the administrative record regarding two

simple-cycle plants that use the same turbine model as proposed for the

Facility. Neither the “Fact Sheet and the Ambient Air Quality Impact Report”

nor the response to comments document analyzed this information in detail nor

explain how it affects the Region’s PM BACT determination. In addition, the

Region’s explanation for its selection of 80 percent load as the defining

criterion for applying two different emission limits and the selection of 5.5

pounds per hour (“lb/hr”) as BACT for loads under 80 percent are not

adequately explained in the record. 

(9) The Region’s Reliance on Federally Enforceable Permit Terms for Carbon

Monoxide: Helping Hand Tools has not demonstrated that the Region clearly

erred when it relied on federally enforceable permit terms in the Final

Determination of Compliance the San Diego Air Pollution Control District

issued in concluding that the Facility’s carbon monoxide emissions are not

subject to the PSD program. The Region properly relied on the Final

Determination of Compliance, which requires that each turbine be equipped

with an oxidation catalyst to limit carbon monoxide emissions from the Facility

to a level below the PSD significant emission threshold regardless of operating

load. 

(10) The Region’s Allowance of Data from Air Quality Monitor Located Nine

Kilometers From the Facility: Mr. Simpson has not demonstrated that the

Region clearly erred when it allowed the use of data from an air quality monitor

located nine kilometers from the proposed Facility as opposed to data from

other air quality monitors in the area. The Region fully explained its rationale

in the response to comments document, and Mr. Simpson’s petition for review

fails to confront the Region’s explanation.

(11) The Region’s Decision Regarding Emission Reduction Credits: Mr. Simpson

has not demonstrated that the Region clearly erred by failing to require

mitigation of air pollution through the use of emission reduction credits. Mr.

Simpson’s petition for review failed to confront the Region’s response to a
4 PIO PICO ENERGY CENTER

similar comment, and the emission reduction credits in question are utilized in

nonattainment new source review permits rather than PSD permits.

Before Environmental Appeals Judges Leslye M. Fraser,

Randolph L. Hill and Kathie A. Stein.

Opinion of the Board by Judge Stein:

TABLE OF CONTENTS

II. ISSUES ON APPEAL .... .... .... .... .... .... .... .... .... .... .... . . 7

III. PRINCIPLES GUIDING BOARD REVIEW ... .... .... .... .... .... .... . 9

A. Standard of Review .... .... .... .... .... .... .... .... .... .... ... 9

B. Petitioner’s Burden on Appeal, Including Threshold Requirements .... . 11

IV. SUMMARY OF DECISION .... .... .... .... .... .... .... .... .... .... 13

V. PROCEDURAL AND FACTUAL HISTORY .... .... .... .... .... .... ... 15

VI. PENDING PROCEDURAL MOTIONS .... .... .... .... .... .... .... ... 18

VII. OVERVIEW OF PSD LEGAL REQUIREMENTS AND BACT ANALYSIS ... 20

VIII. ANALYSIS .... .... .... .... .... .... .... .... .... .... .... .... ... 23

A. Petitioners Have Failed to Demonstrate That the Region Abused Its Discretion

in Electing Not to Perform an Independent “Needs” Analysis, and the

California Public Utility Commission’s (“CPUC’s”) Recent Decision Does Not

Require a Remand for the Region to Reconsider Its Analysis .... .... . . 23

B. The Region Did Not Abuse Its Discretion in Allowing One Commenter

Additional Time to Submit Late Comments on the Region’s Environmental

Justice (“EJ”) Analysis .... .... .... .... .... .... .... .... .... ... 28

C. Mr. Simpson Has Not Demonstrated That the Region Clearly Erred or Abused

Its Discretion by Not Providing a Detailed Response to the Series of Forwarded

E-mails and Attachments He Submitted During the Public Comment Period

.... .... .... .... .... .... .... .... .... .... .... .... .... .... . . 33
PIO PICO ENERGY CENTER 5

D. Helping Hand Tools Has Not Demonstrated That the Region Failed to

Adequately Address Comments About Air Quality Impacts on Inmate

Populations at Nearby Correctional Facilities .... .... .... .... .... . 42

E. Petitioners Have Not Demonstrated That the Region Clearly Erred in

Eliminating Combined-Cycle Gas Turbines in Step 2 of Its BACT Analysis for

Greenhouse Gases(“GHGs”) or That the Issue Otherwise Warrants Review or

Remand .... .... .... .... .... .... .... .... .... .... .... .... ... 46

1. The Region’s Step 2 Analysis .... .... .... .... .... .... .... . . 49

2. Mr. Simpson Failed to Confront the Region’s Responses to Comments and

Explain Why They Were Clearly Erroneous on His General Challenge to

the Region’s Elimination of Combined-Cycle Gas Turbines as BACT

.... .... .... .... .... .... .... .... .... .... .... .... .... . . 54

3. Sierra Club Has Preserved One of Its Substantive Issues for Review

.... .... .... .... .... .... .... .... .... .... .... .... .... . . 56

4. Sierra Club Has Not Demonstrated That the Region Defined “Source

Type” Too Narrowly in Step 2 .... .... .... .... .... .... .... . 59

a. NSR Manual Step 2: Question of Technical Feasibility .... . . 59

b. The Region’s Step 2 Analysis Was Consistent With the NSR Manual

and Board Case Law .... .... .... .... .... .... .... .... 60

5. The Region’s References to the Power Purchase Agreement and RFO in

Its BACT Analysis Do Not Necessitate a Remand in Light of the Recent

CPUC Decision .... .... .... .... .... .... .... .... .... .... . 68

6. Conclusion .... .... .... .... .... .... .... .... .... .... .... 71

F. Chal 2lenges to CO BACT Emission Limit .... .... .... .... .... .... . 71

1. Sierra Club Has Not Demonstrated That the Region Failed to Use Its

Cons 2idered Judgment in Choosing a CO BACT Emission Limit That

Corresponds to the Facility’s Operation at Fifty Percent Load .... 73

a. Background .... .... .... .... .... .... .... .... .... .... . 75

b. Analysis .... .... .... .... .... .... .... .... .... .... .... 78

2. Sierra Club Has Not Demonstrated That the Region Failed to Use Its

Considered Judgment When It Incorporated Safety Factors, or

Compliance Margins, 2 Into the CO BACT Emission Limit .... .... 83
6 PIO PICO ENERGY CENTER

a. Background .... .... .... .... .... .... .... .... .... .... . 83

b. Analysis .... .... .... .... .... .... .... .... .... .... .... 86

G. The Record Does Not Reflect the Permit Issuer’s Considered Judgment in

Selecting the BACT Limit for Particulate Matter (“PM”) .... .... .... 89

1. Overview of Permit Condition .... .... .... .... .... .... .... . 89

2. Challenges on Appeal .... .... .... .... .... .... .... .... .... 90

3. Analysis .... .... .... .... .... .... .... .... .... .... .... ... 91

a. Selection of 0.0065 lb/MMBtu as BACT for Loads Above 80

Percent .... .... .... .... .... .... .... .... .... .... 92

b. Selection of 80 Percent Load asthe Defining Criterion for Applying

Different Emission Limits ... .... .... .... .... .... .... . 97

c. Selection of 5.5 lb/hr as BACT for Loads Under 80

Percent .... .... .... .... .... .... .... .... . . 100

4. Because the Record Does Not Reflect the Permit Issuer’s Considered

Judgment in Selecting BACT Limits for PM, a Remand Is in Order 101

H. Helping Hand Tools Has Not Demonstrated That the Region Clearly Erred by

Relying on Federally Enforceable Permit Terms Included in the SDAPCD’s

Final Determination of Compliance to Conclude That the Facility’s Potential

to Emit Carbon Monoxide Will Not Exceed the Significant Emission Threshold

That Would Otherwise Require Compliance with the PSD Program ... 102

I. Mr. Simpson Has Not Demonstrated That the Region Clearly Erred in Allowing

the Use of Data from an Air Quality Monitor Located Nine Kilometers from the

Facility .... .... .... .... .... .... .... .... .... .... .... .... . . 112

J. Mr. Simpson Has Not Demonstrated That the Region Clearly Erred by Failing

to Require Mitigation of Air Pollutants Through the Use of Emission

Reduction Credits .... .... .... .... .... .... .... .... .... .... . . 114

IX. CONCLUSION & ORDER .... .... .... .... .... .... .... .... .... ... 116
PIO PICO ENERGY CENTER 7

I. STATEMENT OF THE CASE

Helping Hand Tools, Mr. Robert Simpson, and Sierra Club each

filed a timely petition seeking review of a Clean Air Act (“CAA”)

Prevention of Significant Deterioration (“PSD”) permit (“Permit”), PSD

No. SD 11-01, that the U.S. Environmental Protection Agency (“EPA”

or “Agency”) Region 9 (“Region”) issued to Pio Pico Energy Center,

LLC (“Pio Pico” or “Permittee”) on November 19, 2012. The Permit

authorizes Pio Pico to construct and operate a 300-megawatt (“MW”)

natural gas-fired power plant (“Facility”) in Otay Mesa, California. The

petitions challenge the Region’s issuance of, as well as several

conditions in, the Permit. Both the Region and Pio Pico filed responses

to the petitions. The Environmental Appeals Board (“Board”) held a

status conference in this matter on April 11, 2013. For the reasons set

forth below, the Board remands the permit in part and denies review in

part.

II. ISSUES ON APPEAL

The petitions present the following overarching issues for Board

resolution:

1. Has Mr. Simpson or Sierra Club demonstrated that the

Region abused its discretion in electing not to perform

an independent “needs” analysis, and does the

California Public Utility Commission’s (“CPUCs’”)

recent decision require a remand for the Region to

reconsider its analysis?

2. Did the Region abuse its discretion in allowing one

commenter additional time to submit late comments on

the Region’s Environmental Justice (“EJ”) Analysis? 

3. Has Mr. Simpson demonstrated that the Region clearly

erred or abused its discretion by not providing a detailed

response to the series of forwarded e-mails and
8 PIO PICO ENERGY CENTER

attachments he submitted during the public comment

period?

4. Has Helping Hand Tools demonstrated that the Region

failed to adequately address comments raising concerns

about air quality impacts on inmate populations at

nearby correctional facilities?

5. Have Mr. Simpson or Sierra Club demonstrated that the

Region clearly erred in eliminating combined-cycle gas

turbines in Step 2 of its best available control

technology (“BACT”) analysis for greenhouse gases

(“GHGs”) or that the issue otherwise warrants review or

remand?

6. Has Sierra Club demonstrated that the Region failed to

use its considered judgment in choosing a carbon

dioxide (“CO2”) BACT emission limit that corresponds

to the Facility’s operation at fifty percent load?

7. Has Sierra Club demonstrated that the Region failed to

use its considered judgment when it incorporated safety

2

factors, or compliance margins, into the CO BACT

emission limit?

8. Does the record reflect the Region’s considered

judgment in selecting the BACT limit for particulate

matter (“PM”)?

9. Has Helping Hand Tools demonstrated that the Region

clearly erred by relying on federally enforceable permit

terms included in the San Diego County Air Pollution

Control District’s determination of compliance to

conclude that the facility’s potential to emit (“PTE”)

carbon monoxide (“CO”) will not exceed the significant

emission threshold that would otherwise require

compliance with the PSD program?
PIO PICO ENERGY CENTER 9

 The EPA recently revised 40 C.F.R. § 124.19 and other related provisions in 1

parts 124 and 270 of the Code of Federal Regulations to clarify practices and procedures

in appeals of permit decisions filed before the Board. See Revisions to Procedural Rules

to Clarify Practices and Procedures Applicable in Permit Appeals Pending Before the

Board, 78 Fed Reg. 5281, 5288 (Jan. 25, 2013), available at www.epa.gov/eab (click on

Regulations Governing Appeals). The revised part 124 provisions became effective on

March 26, 2013. Id. Because the petitions in this matter were filed before the effective

date of the revised provisions, the part 124 provisions cited in this decision correspond

to the provisions in effect at the time the petitions were filed.

10. Has Mr. Simpson demonstrated that the Region clearly

erred in allowing the use of data from an air quality

monitor located nine kilometers from the Facility?

11. Has Mr. Simpson demonstrated that the Region clearly

erred by failing to require mitigation of air pollutants

through the use of emission reduction credits?

III. PRINCIPLES GUIDING BOARD REVIEW

Section 124.19 of Title 40 of the Code of Federal Regulations

governs Board review of a PSD permit. In any appeal from a permit 1

decision issued under part 124, the petitioner bears the burden of

demonstrating that review is warranted. See 40 C.F.R. § 124.19(a).

A. Standard of Review

The Board has discretion whether to review a PSD permit. In re

Avenal Power Ctr., LLC, PSD Appeal Nos. 11-02 through 11-05, slip op.

at 14-15 (EAB Aug. 18, 2011), 15 E.A.D. ___, appeal docketed sub nom.

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

the Board will not review a PSD permit unless the permit decision either

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)(1)-(2); accord, e.g., In re Prairie State Generating

Co., 13 E.A.D. 1, 10 (EAB 2006), aff’d sub nom. Sierra Club v. EPA,

499 F.3d 653 (7th Cir. 2007).
10 PIO PICO ENERGY CENTER

When evaluating a challenged permit decision for clear error, the

Board examines the administrative record that serves as the basis for the

permit to determine whether the permit issuer exercised his or her

“considered judgment.” See, e.g., In re Steel Dynamics, Inc. (“Steel

Dynamics I”), 8 E.A.D. 165, 191, 224-25 (EAB 2000); In re Ash Grove

Cement Co., 7 E.A.D. 387, 417-18 (EAB 1997). 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. (“Shell Offshore 2007”),

13 E.A.D. 357, 386 (EAB 2007). As a whole, the record must

demonstrate that the permit issuer “duly considered the issues raised in

the comments” and ultimately adopted an approach that “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 2002); accord In re City of

Moscow, 10 E.A.D. 135, 142 (EAB 2001); In re NE Hub Partners, LP,

7 E.A.D. 561, 567-68 (EAB 1998), review denied sub nom. Penn Fuel

Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999). On matters that are

fundamentally technical or scientific in nature, the Board typically will

defer to a permit issuer’s technical expertise and experience, as long as

the permit issuer adequately explains its rationale and supports its

reasoning in the administrative record. See In re Dominion Energy

Brayton Point, LLC, 12 E.A.D. 490, 510 (EAB 2006); see also, e.g.,

In re Russell City Energy Ctr. (“Russell City”), PSD Appeal Nos. 10-01

through 10-05, slip op. at 88 (EAB Nov. 18, 2010), 15 E.A.D. ___,

petition denied sub nom. Chabot-Las Positas Cmty. Coll. Dist. v. EPA,

No. 10-73870 (9th Cir. May 4, 2012); In re Peabody W. Coal Co.,

12 E.A.D. 22, 40-41, 46, 51 (EAB 2005); NE Hub, 7 E.A.D. at 570-71.

In reviewing an exercise of discretion by the permitting

authority, the Board applies an abuse of discretion standard. See In re

Guam Waterworks Auth., NPDES Appeal Nos. 9-15 & 9-16, slip op. at 9

n.7 (EAB 2011), 15 E.A.D. ___. The Board will uphold a permitting

authority’s reasonable exercise of discretion if that decision is cogently

explained and supported in the record. See Ash Grove, 7 E.A.D. at 397

(“[A]cts of discretion must be adequately explained and justified.”); see

also Motor Vehicles Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29, 48 (1983) (“We have frequently reiterated that an agency
PIO PICO ENERGY CENTER 11

 Federal circuit courts of appeal have upheld this Board requirement that a 2

petitioner must substantively confront the permit issuer’s response to the petitioner’s

previous objections. City of Pittsfield v. EPA, 614 F.3d 7, 11-13 (1st Cir. 2010), aff’g

In re City of Pittsfield, NPDES Appeal No. 08-19 (EAB Mar. 4, 2009) (Order Denying

Review); Mich. Dep’t of Envtl. Quality v. EPA, 318 F.3d 705, 708 (6th Cir. 2003)

(“[Petitioner] simply repackag[ing] its comments and the EPA’s response as unmediated

appendices to its Petition to the Board * * * does not satisfy the burden of showing

entitlement to review.”), aff’g In re Wastewater Treatment Fac. of Union Twp., NPDES

Appeal Nos. 00-26 & 00-28 (EAB Jan. 23, 2001) (Order Denying Petitions for Review);

(continued...)

must cogently explain why it has exercised its discretion in a given

manner * * *.”).

B. Petitioner’s Burden on Appeal, Including Threshold Requirements

In determining whether to review a petition filed under 40 C.F.R.

§ 124.19(a), the Board first considers whether the petitioner has met

threshold procedural requirements such as timeliness, standing, issue

preservation, and specificity. See 40 C.F.R. § 124.19; In re IndeckElwood, LLC, 13 E.A.D. 126, 143 (EAB 2006). For example, a

petitioner must demonstrate that any issues and arguments it raises on

appeal have been preserved for Board review (i.e., were raised during the

public comment period or public hearing on the draft permit), unless the

issues or arguments were not reasonably ascertainable at the time.

40 C.F.R. §§ 124.13, .19; see, e.g., In re City of Attleboro, NPDES

Appeal No. 08-08, slip op. at 10, 58-59 (EAB Sept. 15, 2009), 14 E.A.D.

__; City of Moscow, 10 E.A.D. at 141, 149-50. Assuming that a

petitioner satisfies all threshold procedural obligations, the Board then

evaluates the petition to determine if it warrants review. Indeck,

13 E.A.D. at 143.

As noted above, in any appeal from a permit under part 124, the

petitioner bears the burden of demonstrating that review is warranted.

Thus to the extent a petitioner challenges an issue the permit issuer

addressed in its response to comments, the petitioner must explain why

the permit issuer’s previous response to those comments was clearly

erroneous or otherwise warrants review. Id. § 124.19(a); see, e.g., In re 2 3
12 PIO PICO ENERGY CENTER

(...continued) 2

LeBlanc v. EPA, No. 08-3049, at 9 (6th Cir. Feb. 12, 2009) (concluding that the Board

correctly found petitioners to have procedurally defaulted where petitioners merely

restated “grievances” without offering reasons why the permit issuer’s responses were

clearly erroneous or otherwise warranted review), aff’g In re Core Energy, LLC, UIC

Appeal No. 07-02 (EAB Dec. 19, 2007) (Order Denying Review). 

 The Board notes for future reference that the new part 124 regulations (not 3

applicable to the petitions in this case but applicable to any petition filed on or after

March 26, 2013) further require that petitioners “provide a citation to the relevant

comment and response.” 40 C.F.R. § 124.19(a)(4)(ii). 

Teck Cominco Alaska, Inc., 11 E.A.D. 457, 494-95 (EAB 2004); In re

Westborough, 10 E.A.D. 297, 305, 311-12 (EAB 2002); In re City of

Irving, 10 E.A.D. 111, 129-30 (EAB 2001),review denied sub nom. City

of Abilene v. EPA, 325 F.3d 657 (5th Cir. 2003). The Board consistently

has denied review of petitions that merely cite, attach, incorporate, or

reiterate comments previously submitted on the draft permit. E.g., In re

City of Pittsfield, NPDES Appeal No. 08-19 (EAB Mar. 4, 2009) (Order

Denying Review), aff’d, 614 F.3d 7, 11-13 (1st Cir. 2010); In re Knauf

Fiber Glass, GmbH (“Knauf II”), 9 E.A.D. 1, 5 (EAB 2000) (“Petitions

for review may not simply repeat objections made during the comment

period; instead they must demonstrate why the permitting authority’s

response to those objections warrants review.”); In re Hadson Power 14,

4 E.A.D. 258, 294-95 (EAB 1992) (denying review where petitioners

merely reiterated comments on draft permit and attached a copy of their

comments without addressing permit issuer’s responses to comments).

When a petition is filed by a person who is unrepresented by

legal counsel, the Board endeavors to liberally construe the petitions to

fairly identify the substance of the arguments being raised. In re Sutter

Power Plant, 8 E.A.D. 680, 687 (EAB 1999); see also In re Envtl.

Disposal Sys., Inc., 12 E.A.D. 254, 292 n.26 (EAB 2005); In re

Envotech, LP, 6 E.A.D. 260, 268 (EAB 1996). While the Board “does

not expect such petitions to contain sophisticated legal arguments or to

employ precise technical or legal terms,” the Board nevertheless “does

expect such petitions to provide sufficient specificity to apprise the

Board of the issues being raised.” Sutter, 8 E.A.D. at 687-88; accord
PIO PICO ENERGY CENTER 13

In re P.R. Elec. Power Auth., 6 E.A.D. 253, 255 (EAB 1995). “The

Board also expects the 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 688; accord In re Beckman

Prod. Servs., 5 E.A.D. 10, 19 (EAB 1994). Thus, the burden of

demonstrating that review is warranted still rests with the petitioner

challenging the permit decision. In re New Eng. Plating Co., 9 E.A.D.

726, 730 (EAB 2001); In re Encogen Cogeneration Facility, 8 E.A.D.

244, 249-50 (EAB 1999). 

IV. SUMMARY OF DECISION

For the reasons stated below, the Board concludes that: 

1. Mr. Simpson and Sierra Club have failed to

demonstrate that the Region abused its

discretion in electing not to perform an

independent “needs” analysis, and the CPUC’s

recent decision does not require a remand to the

Region to reconsider its analysis;

2. The Region did not abuse its discretion in

allowing one commenter additional time to

submit late comments on the Region’s EJ

Analysis;

3. Mr. Simpson has not demonstrated that the

Region clearly erred or abused its discretion by

not providing a detailed response to the series

of forwarded e-mails and attachments that he

submitted during the public comment period;

4. Helping Hand Tools has not demonstrated that

the Region failed to adequately address

comments raising concerns about air quality

impacts on inmate populations at nearby

correctional facilities;
14 PIO PICO ENERGY CENTER

5. Mr. Simpson and Sierra Club have not

demonstrated that the Region clearly erred in

eliminating combined-cycle gas turbines in Step

2 of its BACT analysis for greenhouse gases or

that the issue otherwise warrants review or

remand;

6. Sierra Club has not demonstrated that the

Region failed to use its considered judgment in

choo 2sing a CO BACT emission limit that

corresponds to the Facility’s operation at fifty

percent load;

7. Sierra Club has not demonstrated that the

Region failed to use its considered judgment

when it incorporated safety factors, or

compliance 2 margins, into the CO BACT

emission limit; 

8. The record does not reflect the Region’s

considered judgment in selecting the BACT

limit for PM; 

9. Helping Hand Tools has not demonstrated that

the Region clearly erred by relying on federally

enforceable permit terms included in the San

Diego County Air Pollution Control District’s

determination of compliance to conclude that

the Facility’s PTE to emit CO will not exceed

the significant emission threshold that would

otherwise require compliance with the PSD

program; 

10. Mr. Simpson has not demonstrated that the

Region clearly erred in allowing the use of data

from an air quality monitor located nine

kilometers from the proposed Facility; and
PIO PICO ENERGY CENTER 15

 Because the terms “draft permit” and “proposed permit” are not consistently 4

used across the parties’ documents, the administrative record, and the part 124

regulations, the Board uses them interchangeably throughout this decision.

11. Mr. Simpson has not demonstrated that the

Region clearly erred by failing to require

mitigation of air pollutants through the use of

emission reduction credits.

As explained in detail in Part VIII.F of this decision, the Board

remands the Permit in part for the Region to conduct a revised BACT

analysis for PM and to allow public comments on the Region’s analysis,

and denies review of all other issues.

V. PROCEDURAL AND FACTUAL HISTORY

The public comment period for the proposed permit began on 4

June 20, 2012, and was originally scheduled to close on July 24, 2012.

See U.S. EPA Region 9, Responses to Public Comments on the Proposed

Prevention of Significant Deterioration Permit for the Pio Pico Energy

Center at 2 (Nov. 2012) (Administrative Record (“A.R.”) VII.3)

[hereinafter RTC]. The Region later extended it until September 5,

2012. Id. The Region also allowed one individual additional time, until

September 20, 2012, to submit late comments on the Region’s EJ

Analysis. Id. at 2 n.2. On November 19, 2012, the Region issued its

final permitting decision and a document responding to the comments it

had received. See generally U.S EPA Region 9, Final PSD Permit

(Nov. 19, 2012) (A.R. VII.2) (“Permit”); RTC at 1.

Helping Hand Tools, Mr. Simpson, and Sierra Club each filed

a timely appeal challenging different aspects of the decisionmaking

process, underlying technical determinations, and certain conditions in

the Permit. See Helping Hand Tools Petition for Review (filed

Dec. 19, 2012) (“Helping Hand Tools Pet.”); Robert Simpson Petition
16 PIO PICO ENERGY CENTER

 The Board assigned Helping Hand Tools’ petition PSD Appeal 5

Number 12-04, Mr. Simpson’s petition PSD Appeal Number 12-05, and Sierra Club’s

petition PSD Appeal Number 12-06.

Decision Determining [SDG &E’s] Local Capacity Requirement and 6

Granting Partial Authority to Enter into [PPTAs] at 2-3 (Mar. 21, 2013), available at

http://docs.cpuc.ca.gov/PublishedDocs/Published/G000/M060/K898/60898567.PDF

[hereinafter CPUC Decision].

for Review (filed Dec. 19, 2012) (“Simpson Pet.”); Sierra Club Petition

for Review (filed Dec. 19, 2012) (“Sierra Club Pet.”).

5

Both the Region and Pio Pico filed responses to the petitions.

See EPA Region 9’s Response to Petition for Review (filed Feb. 6, 2013)

(“Region Resp.”); Brief of Intervenor Pio Pico Energy Center, LLC in

Response to the Petitions for Review (filed Feb. 6, 2013) (“Pio Pico

Resp.”). On February 19, 2013, Sierra Club filed a motion seeking leave

to file a reply brief and attached its proposed reply brief. Petitioner

Sierra Club Motion for Leave to File Short Reply; Petitioner Sierra

Club’s (Proposed) Reply (“Sierra Club Reply Br.”). Both Pio Pico and

the Region opposed Sierra Club’s motion.

Concurrent with these PSD permit proceedings and pursuant to

California law, the California Public Utility Commission (“CPUC”)

undertook review of an application submitted by the San Diego Gas &

Electric Company (“SDG&E”) for the approval of long-term power

purchase tolling agreements (“PPTAs”) with three power plants, one of

which is the Pio Pico Facility. The PPTA between SDG&E and Pio Pico

would have authorized SDG&E to purchase power generated at the

Facility beginning in 2014 and continuing for a twenty-year period. On 6

March 22, 2013, Pio Pico filed a Notice of Supplemental Information

notifying the Board that the CPUC issued its final decision denying

SDG&E the authority to enter into a PPTA with Pio Pico at the present

time. Notice of Supplemental Information at 1 (Mar. 22, 2013)

(“Mar. 22, 2013 Notice”). The CPUC decision did, however, “direct

SDG&E to procure up to 298 MW of local capacity to come on-line

beginning in 2018,” and noted that, if the proposed PPTA is amended to
PIO PICO ENERGY CENTER 17

 The attorney for Helping Hand Tools, Mr.Johannes Epke, did not participate

7

at the status conference, but Mr. Simpson, who is a member of the group, attended the

status conference by phone both on his and Helping Hand Tools’ behalf. Status Conf.

Tr. at 7. On May 22, 2013, several weeks after the status conference, the Board received

the copy of the Board’s scheduling order that the Board had sent to Mr. Epke marked

“not at this address.” See EAB Dkt. No. 30, available at www.epa.gov/eab. The Clerk

of the Board subsequently made several attempts to contact Mr. Epke without success.

correspond to the identified need, SDG&E could seek to meet this need

using the Pio Pico Energy Center. CPUC Decision at 18. 

Shortly thereafter, both the Region and Sierra Club filed motions

for leave to respond and proposed responses to Pio Pico’s notice. Based

on the information submitted by the parties, the Board concluded that the

changes in circumstances raised significant questions about the status of

the proposed Facility, such as whether it still would be built; if so,

whether the nature, purpose, and design parameters of the project would

remain as originally proposed by Pio Pico and as permitted in the PSD

decision the Region issued; when construction likely would begin; and

whether the Region would have approached its BACT analysis in the

same manner absent Pio Pico’s contractual obligation to SDG&E under

the PPTA. Consequently, the Board granted Sierra Club’s and the

Region’s motions and scheduled a status conference on April 11, 2013,

to discuss these issues. See Order Scheduling Status Conference and

Directing Parties to Provide Additional Information at 2, 4-6 (Apr. 5,

2012) (“Board’s April 5th Order”); see also Status Conference

Transcript (filed April 24, 2013) (“Status Conf. Tr.”). The Board also

directed Pio Pico and the Region to file supplemental briefs on the issues

and authorized Petitioners to file responses to the supplemental briefs,

if they so chose. Board’s April 5th Order at 5, 7.

All parties participated in the status conference. Shortly 7

thereafter, Pio Pico, the Region, and Sierra Club filed follow-up briefs

as authorized by the Board’s April 5th Order. On June 11, 2013, Pio

Pico filed a notice of supplemental information informing the Board of

a recent factual development related to the issues discussed at the status

conference: the fact that SDG&E and Pio Pico “had executed an

amendment to the [PPTA] which contemplates the project starting
18 PIO PICO ENERGY CENTER

 The Board applied this same presumption in its previous NSR standing order 8

as well. See Order Governing Petitions for Review of Clean Air Act New Source Review

Permits ¶ 3, at 3 (EAB Apr. 19, 2011). 

construction in early 2014 and requires a commercial operations date no

later than September 1, 2015.” See [Second] Notice of Supplemental

Information at 1. On June 18, 2013, Sierra Club filed an unopposed

motion for leave to respond to Pio Pico’s notice and attached its

proposed response brief. See Petitioner Sierra Club’s Motion for Leave

to Respond to Pio Pico Energy Center LLC’s June 11, 2013 Notice of

Supplemental Information; (Proposed) Sierra Club’s Response to Pio

Pico Energy Center LLC’s June 11, 2013 Notice of Supplemental

Information.

VI. PENDING PROCEDURAL MOTIONS

Currently before the Board are two outstanding motions: Sierra

Club’s Motion for Leave to File Short Reply and Sierra Club’s Motion

for Leave to Respond to Pio Pico Energy Center LLC’s June 11, 2013

Notice of Supplemental Information. The Board addresses them in turn.

The Board applies a presumption against the filing of reply

briefs or sur-replies in appeals of new source review (“NSR”) permits,

like the PSD permit at hand. Revised Order Governing Petitions for

Review of Clean Air Act New Source Review Permits ¶ 3, at 3

(EAB Mar. 27, 2013) (“Standing Order”), available at

http://www.epa.gov/eab (follow “Standing Orders” hyperlink). A 8

petitioner seeking leave to file a reply brief must satisfy a high threshold

to overcome this presumption by stating “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.” In re Shell Gulf of Mex., Inc. (“Shell Gulf of Mex. 2012”), OCS

Appeal Nos. 11-02, 11-03, 11-04 & 11-08, slip. op. at 15 (EAB Jan. 12,

2012), 15 E.A.D. ___ (citations omitted). 
PIO PICO ENERGY CENTER 19

A new explanation or rationale for the Region’s permitting

decisions that appears for the first time in the Region’s response brief

has the potential to significantly affect the outcome of the Board’s

decision on that issue, and historically, the Board has granted parties’

motions to file replies and sur-replies when new arguments are raised in

opposing briefs. See, e.g., id. at 16, 15 E.A.D. at ___. The Board has

held that when a permit issuer offers a new rationale, cites new authority,

or relies on new information to support its decisionmaking for the first

time in its response brief, such circumstances meet the high threshold

required to overcome the presumption against filing a reply brief. Id. 

In this instance, Sierra Club asserts that the Region cites for the

first time in its response brief additional information to support the

Region’s rationale for selecting the PM BACT limit included in the final

Permit. Sierra Club Reply Br. at 6-7 & n.8. Sierra Club similarly asserts

that the Region relied for the first time in its response brief on additional

information contained in the administrative record to support the

Region’s decision to include safety factors, or compliance margins,

within the GHG BACT emission limit. Id. at 4-5. Upon consideration,

the Board concludes that for these two select issues Sierra Club meets

the high threshold required to overcome the Board’s stated presumption

against filing reply briefs in an NSR appeal. Id. Accordingly, Sierra

Club’s motion to file a reply brief is granted in part. In reaching its

conclusions set forth in this order the Board has considered the portions

of Sierra Club’s reply brief that addressthe Region’s response regarding

the PM BACT limit and safety factors included in the GHG BACT limit.

The Board will not consider Sierra Club’s reply brief arguments

concerning the rejection of combined cycle gas turbines, see id. at 1-3,

because these merely reiterate arguments already contained in Sierra

Club’s petition. 

With respect to Sierra Club’s other pending motion, which was

unopposed, the Board grants the motion and accepts Sierra Club’s

response to Pio Pico’s supplemental information. Sierra Club’s brief,

which is notably quite short, merely responds to the new information Pio

Pico filed updating information it had previously provided in response

to the Board’s April 5th Order.
20 PIO PICO ENERGY CENTER

VII. OVERVIEW OF PSD LEGAL REQUIREMENTS AND

BACT ANALYSIS

The PSD provisions govern air pollution in certain areas, called

“attainment” areas, where the air quality meets or is cleaner than the

national ambient air quality standards (“NAAQS”), as well as in

unclassifiable areas that are neither attainment nor “nonattainment.”

CAA §§ 160-169, 42 U.S.C. §§ 7470-7479; accord In re RockGen

Energy Ctr., 8 E.A.D. 536, 541 (EAB 1999). The statutory PSD

provisions are largely carried out through a regulatory process that

requires new major stationary sources in attainment (or unclassifiable)

areas, such as the Facility, to obtain preconstruction permits pursuant to

CAA § 165, 42 U.S.C. § 7475. See 40 C.F.R. § 52.21; RockGen,

8 E.A.D. at 541; In re Knauf Fiber Glass, GmbH (“Knauf I”), 8 E.A.D.

121, 123 (EAB 1999).

The CAA and Agency PSD regulations require that every

proposed PSD permit be subjected to a preconstruction review by the

permitting authority, which must include an opportunity for a public

hearing that allows interested persons to comment on the air quality

impact of the proposed source, alternatives thereto, control technology,

and other appropriate considerations. CAA § 165(a)(2), 42 U.S.C.

§ 7475(a)(2); 40 C.F.R. § 124.12(a); In re Sierra Pac. Indus., PSD

Appeal Nos. 13-01 through 13-04 (EAB July 18, 2013), 15 E.A.D. ___.

As part of the preconstruction review process, new major stationary

sources and major modifications of such sources employ the “best

available control technology,” or BACT, to minimize emissions of

regulated pollutants. CAA § 165(a)(4), 42 U.S.C. § 7475(a)(4);

40 C.F.R. § 52.21(j)(2). The statute defines the BACT requirements as

follows:

The term “best available control technology” means an

emission limitation based on the maximum degree of

reduction of each pollutant subject to regulation under

this chapter emitted from or which results from any

major emitting facility, which the permitting authority,

on a case-by-case basis, taking into account energy,
PIO PICO ENERGY CENTER 21

 Notably, the NSR Manual is not a binding Agency regulation, and 9

consequently strict application of the methodology described in it is not mandatory nor

is it the required vehicle for making BACT determinations. E.g., NMU, slip op. at 12,

14 E.A.D. at __; Prairie State, 13 E.A.D. at 6 n.2; Knauf I, 8 E.A.D. at 129 n.13.

Nevertheless, because it provides a framework for determining BACT that assures

adequate consideration of the statutory and regulatory criteria, it has guided state and

federal permit issuers, as well as PSD permit applicants, on PSD requirements and policy

for years. E.g., NMU, slip op. at 12, 14 E.A.D. at __; In re Cardinal FG Co., 12 E.A.D.

(continued...)

environmental, and economic impacts and other costs,

determines is achievable for such facility through

application of production processes and available

methods, systems, and techniques, including fuel

cleaning, clean fuels, or treatment or innovative fuel

combustion techniques for control of each such

pollutant.

CAA § 169(3), 42 U.S.C. § 7479(3); accord 40 C.F.R. § 52.21(b)(12)

(similar regulatory definition). As the Board explained in In re Northern

Michigan University (“NMU”), the BACT definition requires permit

issuers to “proceed[] on a case-by-case basis, taking a careful and

detailed look, attentive to the technology or methods appropriate for the

particular facility, [] to seek the result tailor-made for that facility and

that pollutant.” PSD Appeal No. 08-02, slip op. at 12 (EAB Feb. 18,

2009), 14 E.A.D. ___ (citations and quotations omitted). BACT is

therefore a site-specific determination that results in the selection of an

emission limitation representing application of control technology or

methods appropriate for the particular facility. In re Prairie State

Generating Co., 13 E.A.D. 1, 12 (EAB 2006), aff’d sub nom. Sierra

Club v. EPA, 499 F.3d 653 (7th Cir. 2007); In re Three Mountain Power,

LLC, 10 E.A.D. 39, 47 (EAB 2001); Knauf I, 8 E.A.D. at 128-29.

In 1990, EPA issued draft guidance for permitting authorities to

use in analyzing PSD requirements (among others) in a consistent and

systematic way. See generally Office of Air Quality Planning

& Standards, U.S. EPA, New Source Review Workshop Manual 1 (draft

Oct. 1990) (“NSR Manual”). The NSR Manual sets forth a “top-down” 9
22 PIO PICO ENERGY CENTER

(...continued) 9

153, 162 (EAB 2005); see also In re Steel Dynamics, Inc. (“Steel Dynamics II”),

9 E.A.D. 165, 183 (EAB 2000) (“This top-down analysis is not a mandatory

methodology, but it isfrequentlyused bypermitting authorities to ensure that a defensible

BACT determination, involving consideration of all requisite statutory and regulatory

criteria, is reached.”). The Region utilized the “top-down method” described in the NSR

Manual when determining BACT emission limits for the Permit. See U.S. EPA Region 9,

Fact Sheet and Ambient Air Quality Impact Report for a CAA PSD Permit, Pio Pico

Energy Center at 8 (June 2012) (A.R. IV.2) (“Fact Sheet & AAQIR”); RTC at 31-32, 45.

process for determining BACT for each particular regulated pollutant

that is summarized as follows:

The top-down process provides that all available control

technologies be ranked in descending order of control

effectiveness. The PSD applicant first examines the

most stringent – or “top” – alternative. That alternative

is established as BACT unless the applicant

demonstrates, and the permitting authority in its

informed judgment agrees, that technical considerations,

or energy, environmental, or economic impacts justify

a conclusion that the most stringent technology is not

“achievable” in that case.

Id. at B.2. Permit issuers apply the top-down method on a case-by-case

basis to each permit they evaluate. See id. at B.1 (explaining that all

BACT analyses are done case-by-case). The NSR Manual’s

recommended top-down analysis employs five steps:

Step 1: Identify all available control options with potential

application to the source and the targeted pollutant;

Step 2: Analyze the control options’ technical feasibility; 

Step 3: Rank feasible options in order of effectiveness;

Step 4: Evaluate the energy, environmental, and economic

impacts of the options; and
PIO PICO ENERGY CENTER 23

Step 5: Select a pollutant emission limit achievable by

the most effective control option not eliminated

in a preceding step.

Id. at B.5-.9.

VIII. ANALYSIS

In the analysis that follows, the Board considers each of the

issues identified in Part II of this decision in turn. The Board concludes

that, for one issue, remand is warranted. For the remaining issues, the

Board concludes that Petitioners have not met their burden of

demonstrating that the Region based its permit decision on a clearly

erroneous finding of fact or conclusion of law, or that the Region abused

its discretion in a manner warranting review.

A. Petitioners Have Failed to Demonstrate That the Region Abused Its

Discretion in Electing Not to Perform an Independent “Needs”

Analysis, and the California Public Utility Commission’s

(“CPUC’s”) Recent Decision Does Not Require a Remand for the

Region to Reconsider Its Analysis

The Board begins its analysis by addressing Mr. Simpson’s and

Sierra Club’s request that the Board remand the Permit in light of the

recent CPUC decision that raises questions about the Facility’s need.

See Status Conf. Tr. at 42-44, 50-54. The Region, in response to

comments asking whether the Facility was needed, had declined to

conduct a “rigorous and robust” analysis of the “need” for the Facility

and had declined to rely on any California agency’s specific

determinations of “need” for the Facility. See RTC at 73. In doing so,

the Region relied on prior Board precedent stating that such matters are

within the Agency’s discretion.

Mr. Simpson claims that the Region’s findings of fact on this

issue are “misplaced.” Simpson Pet. at 6. He further argues that the

Board should remand the Permit based on “new information” in the form

of the CPUC’s recent decision “to deny the [Pio Pico] project and
24 PIO PICO ENERGY CENTER

 In his Petition, Mr. Simpson refers to CPUC’s proposed decision, which was 10

issued the day after the Region issued the Permit. A final decision has now been issued,

and the parties, in their arguments at the status conference and in their supplemental

briefs, discuss the final decision. Consequently, the Board refers solely to the final

version of the decision in the rest of this decision.

 Normally, the Board would not allow Sierra Club to raise a new issue for the 11

first time on appeal during the supplemental briefing phase. See, e.g., Russell City,

slip op. at 45 n.35, 15 E.A.D. at ___ (explaining that issue may not be raised for the first

time in a reply brief); In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 595

(EAB 2006) (declining to consider issue that could have been raised in a timely petition

but was instead raised in a response brief); Knauf I, 8 E.A.D. at 126 n.9 (“New issues

raised for the first time at the reply stage of the[] proceedings are equivalent to late filed

appeals and must be denied on the basis of timeliness.”). Because Sierra Club raises this

issue in connection with the CPUC’s recent decision, which the CPUC issued after the

PSD permit issuance and which arguably involves new information that is potentially

relevant to the permit decision, the Board considers Sierra Club’s arguments with

Mr. Simpson’s. See, e.g., In re Circle T Feedlot, Inc., NPDES Appeal Nos. 09-02

& 09-03, slip op. at 13 & n.11 (EAB June 7, 2010), 14 E.A.D. __ (allowing petitioners

to file a joint addendum discussing the applicability of a United States Supreme Court

case issued after petitions were filed).

associated proposed PP[T]A,” which was issued after the Region issued

the final PSD Permit. Id. (referring to CPUC Decision); accord Status

10

Conf. Tr. at 50-54. Sierra Club similarly contends that, at a minimum,

the permit and comment period should be reopened in light of the CPUC

decision. Sierra Club Response to [March 22, 2013] Notice of

11

Supplemental Information at 2; accord Status Conf. Tr. at 42-44.

Although not clearly articulated in their petitions and briefs,

Mr. Simpson and Sierra Club appear to be relying on Board precedent

interpreting a CAA provision, section 165(a)(2), 42 U.S.C. § 7475(a)(2).

See, e.g., Simpson Pet. at 6 (citing page 73 of the response to comments

document, which in turn cites section 165(a)(2) of the CAA); Status

Conf. Tr. at 42-44 (arguing that the Region did not consider the need for

the facility or “alternatives”). This section provides that PSD permitting

authorities must provide the public with the opportunity to comment on

“the air quality impact of [the proposed] source, alternatives thereto,

control technology requirements, and other appropriate

considerations[.]” CAA § 165(a)(2), 42 U.S.C. § 7475(a)(2) (emphasis
PIO PICO ENERGY CENTER 25

added). The Board has interpreted the statutory language to allow, but

not require, consideration of a no-build alternative. In re City of

Palmdale, PSD Appeal No. 11-07, slip op. at 57 (EAB Sept. 17, 2012),

15 E.A.D. __, appeal docketed sub nom. Simpson v. EPA, No. 12-74124

(9th Cir. Dec. 18, 2012); Prairie State, 13 E.A.D. at 32-33 (holding that

the state permitting authority was incorrect in stating that it was not

empowered to consider a no-build alternative, but upholding the permit

because it was clear that the permitting authority had reasonably

exercised its discretion not to conduct an independent analysis of a

no-build alternative).

In the present permitting proceeding, Mr. Simpson initially

raised the issue of the “need” for the Facility in his comments on the

draft permit. In those comments, he first generally asserted that “there

is no need for this project.” E-mail from Rob Simpson, Exec. Dir.,

Helping Hand Tools, to Roger Kohn, U.S. EPA, at 1 (July 18, 2012,

00:56 PDT) (A.R. VI.14) [hereinafter Simpson Cmt.]. Then, relying on

language from another permitting decision in which the Region had

explicitly relied on a state agency’s “needs” analysis, he contended that,

because California had not yet addressed the “need” issue for Pio Pico,

the Region was “not in a position to make a final decision.” Id. at 1-2

(quoting response to comments document for the Palmdale Hybrid Power

Project permitting decision). 

In responding to Mr. Simpson’s comment, the Region reasonably

exercised its discretion not to evaluate the need for Pio Pico and not to

rely on a state agency’s analysis. See RTC at 72-74. Among other

things, the Region correctly pointed out that it was not required to

conduct an independent analysis of the need for the Facility in the

context of the PSD permit proceeding. Id. at 73 (citing and relying on

Palmdale, slip op. at 57, 15 E.A.D. at __, and Prairie State, 13 E.A.D.

at 32-33). The Region detailed the difficulties in performing such an

analysis: “[I]n order to conduct a reasoned analysis to determine the need

for new natural gas-fired power plants in general, or a specific natural

gas-fired power plant in particular, either within the State as a whole, or

in a particular geographic location within the State, EPA would need to

consider a myriad of extremely complex factors and detailed information
26 PIO PICO ENERGY CENTER

 The Region did note that the power purchase agreement with SDG&E 12

suggests there is “need” for the Facility, but the Region did not rely upon this fact in its

analysis. See RTC at 73.

 On appeal, Mr. Simpson disputes this last statement, contending that he did 13

submit several documents with “specific information” supporting his assertion of the lack

of need for the project: a document he had previously submitted to the CPUC, two

scholarly articles by Mark Jacobsen, and Bill Powers’ testimony. Simpson Pet. at 3-4.

As the Board holds below, the Region did not clearly err or abuse its discretion by not

providing a detailed response to the series of forwarded e-mails and attachments

Mr. Simpson submitted to the Region. See infra Part VIII.C.

that EPA has neither the resources nor the expertise to analyze.” Id.

Significantly, the Region then concluded that, “[i]n this case, EPA does

not believe that it is appropriate to conduct the type of rigorous and

robust analysis that would be required to definitively determine the need

for the Project. Id. (emphasis added). Moreover, with respect to the 12

State of California’s assessment of need, the Region explicitly stated that

it was “not deferring in this case to any agency’s specific determination

of need for the [Facility].” Id. (emphasis added). The Region then noted

that the commenter had not pointed “to any specific information related

to any such determination that [it] should consider.” Id. 

13

On appeal, neither Mr. Simpson nor Sierra Club provide specific

objections to the Region’s responses to comments that call into question

the Region’s initial decision not to evaluate the need for the Facility, nor

to rely on a state agency’s analysis. Sierra Club does not address the

Region’s responses to comments at all, and Mr. Simpson merely asserts,

without more, that the Region’s factual determinations are “misplaced.”

As stated in Part III, a petitioner must explain why the permit issuer’s

response to petitioner’s comments during the comment period is clearly

erroneous or otherwise warrants Board consideration. Mr. Simpson’s

conclusory assertion is insufficient to call into question the Region’s

conclusion,which is a matter clearly within the Region’s discretion. See,

e.g., Russell City, slip op. at 99-100 (declining to find abuse of discretion

where petitioner’s claims “boil down to conclusory assertions of error”);

In re BP Cherry Point, 12 E.A.D. 209, 228 (EAB 2005) (denying review

where petitioner “does not argue with any specificity” why the permit
PIO PICO ENERGY CENTER 27

issuer’s conclusions were clearly erroneous); In re Envotech, LP,

6 E.A.D. 260, 268-69 (EAB 1996) (explaining Board’s specificity

requirement and dismissing petitions for lack of specificity).

The Region’s conclusion that it had the discretion, but was not

required, to conduct an independent analysis of the need for the Facility

in the context of this PSD permit proceeding is entirely consistent with

Board precedent interpreting the CAA. See Palmdale, slip op. at 57,

15 E.A.D. at __; Prairie State, 13 E.A.D. at 32-34. In fact, the Board’s

observations in Prairie State are equally applicable here. In that case,

the Board specifically rejected the contention “that a commenter can

require a permit issuer to perform a rigorous analysis simply by raising

the subject of ‘need’ in the public comments.” Prairie State, 13 E.A.D.

at 33. The Board explained that the permit issuer is only required to

consider the analysis submitted by the commenter – and may choose to

engage in additional analysis “as it sees fit” – as long as the permit

issuer’s response to public comments is “sufficient to ‘demonstrate that

all significant comments were considered.’” Id. (quoting In re NE Hub

Partners, LP, 7 E.A.D. 561, 583 (EAB 1998), review denied sub nom.

Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999)). Here, the

Region responded to comments on the issue, but declined to engage in

additional analysis. That is all that is required. Accordingly, for these

reasons, the Board concludes that Petitioners have not met their burden

of demonstrating that the Region abused its discretion in its initial

“needs” determination.

Mr. Simpson and Sierra Club also argue on appeal that the

CPUC’s recent decision affects the Region’s needs analysis for the

Facility sufficiently enough to require a remand for the Region to

reconsider its analysis and to reconsider the permit. Petitioners miss the

point of the Region’s needs analysis, however. Because the Region did

not rely on the State of California agency’s determination of need, new

information about CPUC’s opinions on the “need” for the Facility does
28 PIO PICO ENERGY CENTER

 Interestingly, the facts the parties reported suggest that SDG&E disagrees

14

with CPUC’s conclusion on the need for the Facility. As noted in Part VIII.E.5, infra,

SDG&E is planning to purchase power from the Facility using short-term contracts. In

addition, Pio Pico has averred that it will build the plant and sell the power in the open

market if SDG&E does not purchase it. Pio Pico’s Supplemental Brief in Response to

Board Order at 2.

 Petitioners’ arguments concerning the state agency’s needs assessment may 15

arise from a misreading of the Board’s case law. In several early cases where petitioners

challenged a permitting authority’s reliance on a state agency analysis of “need,” the

Board and its predecessors explained that it was permissible for a permitting authority to

rely on mechanisms within the relevant state to evaluate the need for a facility, rather than

conducting its own needs assessment. E.g., In re EcoEléctrica, LP, 7 E.A.D. 56, 74

(EAB 1997) (holding that it was not clear error for the permit issuer to defer to the state

agency tasked with the responsibility to consider need for the facility); In re Ky. Utils.

Co., PSD Appeal No. 82-5, at 2 (Adm’r Dec. 21, 1982) (same), available at 1982 EPA

App. LEXIS 17, at *2-3; see also Palmdale, slip op. at 58, 15 E.A.D. at __ (relying on

mechanisms within the State to evaluate the need for the facility); Prairie State,

13 E.A.D. at 34 (concluding that it was “appropriate for the PSD permitting authority to

take into account a state legislature’s decision to deregulate the electric power generation

industry” in declining to exercise its discretion to engage in a broad needs analysis).

Thus, while the Region had the discretion to rely on the analysis of state authorities in

discussing the need for the Facility – which it declined to do in this case – it is not

required to do so.

not affect the Region’s assessment. This decision, as well as the 14

Region’s decision not to rely on the state’s assessment, are both squarely

within the Region’s discretion, and neither party has demonstrated that

the Region abused its discretion in making those decisions.15

B. The Region Did Not Abuse Its Discretion in Allowing One

Commenter Additional Time to Submit Late Comments on the

Region’s Environmental Justice (“EJ”) Analysis

The Board next examines Mr. Simpson’s challenge to the

Region’s decision to allow late comments from one commenter. The

public comment period for the proposed permit began on June 20, 2012,

and was scheduled to close on July 24, 2012. RTC at 2. On July 24,

2012, Mr. Robert Sarvey informed the Region that he had not received
PIO PICO ENERGY CENTER 29

 The regulations governing public notice of permit actions and public

16

comment periods require that the permit issuer notify by mail those who request in

writing to be on a mailing list. 40 C.F.R. § 124.10(c)(1)(ix).

 Executive Order 12898 (“EO 12898” or “Executive Order”), entitled Federal 17

Actions to Address Environmental Justice in Minority Populations and Low-Income

Populations, directs each federal agency to incorporate environmental justice as part of

the agency’s mission “by identifying and addressing, as appropriate, disproportionately

high and adverse human health or environmental effects of its programs, policies, and

activities on minority populations and low-income populations.” Exec. Order No. 12898

§1-101, 59 Fed. Reg. 7629 (Feb. 16, 1994). EPA evaluates the potential impacts of

proposed agency actions on minority and low income populations in an environmental

justice analysis or report.

the proposed permit’s public notice as he had requested, and he asked 16

that theRegion extend the public comment period for another month. Id.

at 44. In evaluating Mr. Sarvey’s request, the Region discovered that

because of a discrepancy in its public notice distribution list, several

persons had not received the required notice. Id. Accordingly, the

Region decided to extend the public comment period for another fortythree days, until September 5, 2012. Id.

On September 6, 2012, a day after the extended public comment

period closed, Mr. Sarvey notified the Region by e-mail that he had not

received a copy of the Region’s EJ Analysis, a document he had

17

previously requested on July 24. Id. The Region responded to Mr.

Sarvey, explaining that the EJ Analysis had been available in the

electronic docket for the proposed permit, on www.regulations.gov, since

the beginning of the public comment period, but because the Region had

not directly responded to his specific request, the Region would provide

him a copy that day and “extend” to him two additional weeks to

comment on the EJ Analysis. Id. at 2 n.2, 44. The Region emphasized

to Mr. Sarvey that it was not “extending” the public comment period to

the general public. Id. at 44. 

Mr. Simpson, who had requested an extension of the original

public comment period (that the Region ultimately granted after
30 PIO PICO ENERGY CENTER

 In July 2012, Mr. Simpson requested an extension of the public comment 18

period to allow the related state and local level proceedings to take place before the PSD

permit proceedings at EPA. See Simpson Cmt. at 1; RTC at 68. In its response to

comments, the Region explains that, in an e-mail dated July 26, 2012, it notified

Mr. Simpson and his attorney that the comment period would be extended until

September 5, 2012, and rejected his request for any further delay to allow other

proceedings to take place. RTC at 70.

 Specifically Mr. Simpson stated: 19

The EPA further prejudiced me when it extended an exclusive

comment period to another member of the public. The EPA cannot

pick and choose who it opens its comment periods to. I am a

member of the public and I require the same rights as other US

citizens. The EPA admitted giving preference to another commenter;

“EPA was extending to him two additional weeks (until

September 20, 2012) to comment only on the EJ Analysis for the

Proposed Permit. EPA noted that it was not extending the public

comment period for the Proposed Permit for the [Facility]

generally.” RTC 44. I require a reopening of the comment period

for all members of the public.

See Simpson Pet. at 3.

discovering a problem with its public notice distribution list) takes 18

issue with the two weeks granted to Mr. Sarvey to submit late comment

on the EJ Analysis and claims that he was prejudiced by the Region’s

action. Mr. Simpson does not specify how he or the general public

19

were harmed or prejudiced by the Region’s action. Significantly, neither

he nor any of the other commenters, except for Mr. Sarvey, commented

on the EJ Analysis.

Mr. Simpson requests on appeal that the public comment period

be reopened for the general public. It is unclear, however, whether Mr.

Simpson is requesting a limited public comment period to focus on the

EJ Analysis, or a broader opportunity to comment on the entire permit.

In this case, the Region characterized the two-week period

granted to Mr. Sarvey as an “extension,” which Mr. Simpson has

interpreted as an extension of the public comment period. Despite the

Region’s characterization, the Board does not interpret the time granted
PIO PICO ENERGY CENTER 31

to Mr. Sarvey to be an extension of the public comment period, but

rather an inartfully worded decision by the Region to accept late

comments from one commenter on one issue. The public comment

period had already closed at the time Mr. Sarvey contacted the Region.

By allowing Mr. Sarvey two additional weeks for submittal of comments

on the EJ Analysis, the Region apparently was neither purporting to

extend nor to reopen the public comment period. See In re Bear Lake

Properties Inc., UIC Appeal No. 11-03, slip op. 22-23 (EAB June 28,

2012), 15 E.A.D. __ (concluding that acceptance of late-filed comments

does not result in a reopening of the comment period); In re Weber #4-8,

11 E.A.D. 241, 243 n.2 (EAB 2003) (noting that simply by responding

to late comments the permit issuer did not reopen the comment period).

As a general matter, permit issuers possess inherent authority

and discretion to accept late comments in a permit proceeding and are

not required to reopen the public comment period when exercising such

discretion. In re Upper Blackstone Water Pollution Abatement Dist.,

NPDES Appeal Nos. 10-09 through 10-12, slip op. at 22 (EAB Mar. 30,

2011), 15 E.A.D. __ (“The Region has the discretionary authority to

consider and rely upon information, including comments, received after

the close of public comment and is not required to reopen the public

comment period except where the Region determines in its discretion

that the new information it relies upon raises substantial new

questions.”), aff’d, Nos. 11-1474 & 11-1610 (1st Cir. Aug. 3, 2012), cert.

denied, 133 S. Ct. 2382 (May 13, 2013); Bear Lake, slip op. at 22-23,

15 E.A.D. at __ (finding no clear error in the permit issuer’s acceptance

of late-filed comments); In re Dominion Energy Brayton Point, LLC,

12 E.A.D. 490, 519 (EAB 2006) (recognizing permit issuer’s discretion

to accept late-filed comments before permit issuance); Weber #4-8,

11 E.A.D. at 243 n.2 (“[A]s a matter of good government, the Region

should retain the flexibility to freely respond to citizens’ concerns, even

those belatedly raised, without impairing the efficiency and finality of

the permitting process.”); Steel Dynamics II, 9 E.A.D. at 194 & n.32

(permit issuer considered and responded to late-filed comment). The

permit issuer, however, must exercise such discretion in a way that is not

an abuse of this authority. For example, a permit issuer cannot accept

late comments from one commenter and reject them from another who,
32 PIO PICO ENERGY CENTER

 This does not mean that the Region is obliged to provide individual 20

information to each requestor when the requested information is already publicly

available.

 As noted above, while Mr. Simpson had requested an extension of the public

21

comment period, his was an early request sought before the closing of the original

comment period, and the Region extended the original comment period until

September 5, 2012.

for similar reasons and at the same time, requests that the permit issuer

consider his or her late comments. This, however, is not the case here.

The record before the Board does not reflect that other commenters

sought additional time to file comments, either generally on the draft

permit or specifically on the EJ Analysis, following the Region’s

extension of the original public comment period, or at the same time of

Mr. Sarvey’s request to submit late comments on the EJ Analysis.

Here, the Region was trying to correct an oversight and be fair

to Mr. Sarvey. Mr. Sarvey had specifically asked the Region for a copy

of the EJ Analysis, and the Region did not directly respond to that

request. In this unusual context, the decision to accept late comments

from Mr. Sarvey on the EJ Analysis appears to be justified and does not

strike the Board as an abuse of discretion. Given the time-sensitive 20

nature of PSD permitting decisions, the Board can understand the

Region’s reluctance to invite comments on the EJ Analysis from the

general public when no other commenters had made such a request or 21

approached the Region with a situation similar to Mr. Sarvey’s.

That being said, because of the confusing language the Region

used to accept late comments, the Region should consider providing

other members of the public the same two-week opportunity to submit

late comments on the EJ Analysis as it gave Mr. Sarvey. As explained

in more detail later in this decision, because the Board is separately

remanding the permit on another issue to allow public comments, this

might provide an opportunity to allow additional late comments on the

EJ Analysis. In the future, the Region should exercise care when using

terms of art such as “extend” or “reopen” and should avoid using such

terms to describe its intent to accept late comments, unless it intends to
PIO PICO ENERGY CENTER 33

 If the Region intends to reopen or extend the public comment period for all 22

interested persons, it would need to follow the procedures that govern reopening and

extension of public comment periods. These procedures require the Region to provide

public notice of the reopening or extension and give the general public an opportunity to

comment. See 40 C.F.R. § 124.14(e) (“Public notice of any of the above actions shall be

issued under § 124.10.”); id. § 124.14(a)(1) (“When the public comment period is

reopened under [§ 124.14(a)(1)], all persons, including applicants, who believe any

condition of a draft permit is inappropriate or that the Regional Administrator’s tentative

decision to * * * prepare a draft permit is inappropriate, must submit all reasonably

available factual grounds supporting their position”). 

follow the procedures in 40 C.F.R. § 124.10(c) and give all members of

the public additional time to comment.22

C. Mr. Simpson Has Not Demonstrated That the Region Clearly Erred

or Abused Its Discretion by Not Providing a Detailed Response to

the Series of Forwarded E-mails and Attachments He Submitted

During the Public Comment Period

Mr. Simpson alleges that the Region violated part 124 procedural

requirements by failing to respond to several of his comments. Simpson

Pet. at 1-5. He requests that the Board “remand the permit and instruct

the [Region] to respond” to them. Id. at 3. The Region contends

Mr. Simpson submitted a number of documents for which he failed to

provide any specific explanation as to their relevance to the PSD permit

under review or to the analyses the Region had prepared as part of the

permit review process. Region Resp. at 9. The Region thus contends

that it did not err or abuse its discretion in not providing a detailed

response to those documents. Id. As explained below, the Board

concludes that Mr. Simpson has failed to show that the Region clearly

erred or abused its discretion by not providing detailed responses to the

e-mails and attachments in question.

On July 18, 2012, Mr. Simpson submitted a two-page e-mail to

the Region, which stated that “[t]his and the following e[-]mails, from

me, constitute my opening comments and request for an extension of the

public comment opportunity for the Pio Pico Proposed PSD permit.”

Simpson Cmt. at 1. Mr. Simpson’s e-mail specifically asked the Region
34 PIO PICO ENERGY CENTER

to extend the public comment period, take “official notice” of the

California Energy Commission (“CEC”) Pio Pico proceedings and the

Palmdale PSD permit proceeding, include all “notice lists” from the

other CPUC and CECproceedings, and revoke the San Diego County Air

Pollution Control District’s (“SDAPCD” or “District”) authority. Id.

at 1-2. The e-mail further argued that “there is no need for this project.”

Id. at 1.

Shortly thereafter, Mr. Simpson sent the Region a series of seven

“follow-up” e-mails. Each was entitled “Pio Pico PSD comments” and

was consecutively numbered (i.e., 1 through 7). The body of each of the

seven e-mails stated “attached please find my initial Pio Pico PSD

comments Pio Pico PSD comments [sic],” followed by Mr. Simpson’s

name, mailing address, and e-mail address. Three of these follow-up

e-mails were forwarded e-mails that had originally been submitted by

Mr. Simpson to Mr. Steve Moore, who, based on the e-mail address and

content, appears to work for the SDAPCD. See, e.g., E-mail from Rob

Simpson, Exec. Dir., Helping Hand Tools, to Roger Kohn, U.S. EPA

(July 18, 2012, 01:19 PDT) (originally addressed to

“Steve.Moore@sdcounty.ca.gov”) (A.R. VI.15). The other four

follow-up e-mails simply contained attachments below Mr. Simpson’s

name and address, with no explanation of their relevance to the draft

PSD permit. These attachments, among other things, included a 1979

Memorandum of Understanding between the CEC and the California Air

Resources Board, Mr. Simpson’s comments on the SDAPCD’s

Preliminary Determination of Compliance for Pio Pico Energy Center,

the testimony of Mr. Bill Powers, and a San Diego Smart Energy 2020

study prepared by Mr. Powers. 

In its response to comments document, the Region responded

point by point to each of the issues Mr. Simpson specifically raised in his

initial two-page e-mail. See RTC at 70-74. With respect to the followup e-mails, the Region stated:

The commenter also submitted a series of emails that

contained miscellaneous attached documents. With the

exception of one email that is the subject of this
PIO PICO ENERGY CENTER 35

 The Region’s observation that Mr. Simpson did not author several of the 23

documents seems to imply that this was relevant to the Region’s decision not to address

them in detail. If this were the Region’s position, the Board would have a concern with

it. The fact that a commenter did not author a document, in and of itself, is irrelevant to

itssignificance in a permitting proceeding. A commenter may submit studies, reports, or

other documents prepared by others, and often does. See, e.g., Dominion, 12 E.A.D.

at 574 & n.138, 576-78 & n.143, 145 (discussing scientific and economic studies

prepared by other authors that the applicant submitted in support of its application). In

its response to the petition, however, the Region clarifies its position, explaining that it

had “mentioned the issue of the authorship ofthese documents in its RTC to illustrate the

point that the documents were prepared by third parties in contexts other than the instant

PSD permit proceeding and that their relevance to this proceeding was unclear.” Region

Resp. at 9 n.4. With this caveat, it does not appear that the Region misunderstood its

obligation with respect to these documents.

response, the body of those emails did not contain any

actual comments on EPA’s Proposed Permit or Fact

Sheet. The attachments do not contain any actual

comments on EPA’s Proposed Permit or Fact Sheet for

[the Facility], nor has the commenter explained with

any specificity the attachments’ relevance to EPA’s

PSD permit decision. Therefore, EPA cannot provide

a detailed response. EPA acknowledges the

commenter’s documents provided as attachments to his

email transmittals and has included the attachments as

part of the commenter’s commentsin the record for this

action.

We also note that the commenter did not author any of

the documents he submitted as attachments to those

emails, with the exception of two letters, both dated [23]

January 18, 2012, which were submitted by the

commenter and his attorney to SDACPD. These

comment letters were issued long before EPA issued the

Proposed Permit and Fact Sheet in this action, and

constitute comments on SDAPCD’s Preliminary

Determination ofCompliance for the project. However,

the letters do not address or comment on the Proposed

Permit and Fact Sheet, nor has the commenter explained
36 PIO PICO ENERGY CENTER

with any specificity the letters’ relevance to EPA’s PSD

permit decision. Accordingly, EPA cannot provide a

detailed response to these letters.

RTC at 74. The Region listed the other miscellaneous documents and

reports that Mr. Simpson had attached, noting that “[a]s with the letters

commenting on SDAPCD’s [Preliminary Determination of Compliance],

the commenter has not explained with any specificity these documents’

relevance to EPA’s PSD permit decision, and therefore EPA cannot

provide a detailed response.” Id.

As noted in Part III, the Agency’s permitting regulations require

persons challenging a PSD permit condition to “raise all reasonably

ascertainable issues and submit all reasonably available arguments

supporting their position by the close of the public comment period.”

40 C.F.R. § 124.13. The regulations also require that the permit issuer

“describe and respond to all significant comments on the draft permit.”

Id. § 124.17(a)(2) (emphasis added). In order to fully effectuate these

provisions, parties submitting comments on draft permits must present

their concerns with sufficient precision and specificity to apprise the

permitting authorities of the significant issues so that the permit issuer

can make timely and appropriate adjustments to its permit determination,

or, if no adjustments are made, can explain why none are necessary in its

response to comments. In re Scituate Wastewater Treatment Plant,

12 E.A.D. 708, 722 (EAB ); see also In re Sutter Power Plant, 8 E.A.D.

680, 687, 694 (EAB 1999); In re RockGen Energy Ctr., 8 E.A.D. 536,

540, 547-48 (EAB 1999). As the Board explained in In re Encogen

Cogeneration Facility, “[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.” 8 E.A.D. 244, 250 (EAB 1999).

Importantly, the permitting authority’s adjustments and

explanations to comments form the basis for parties to appeal the permit

decision. See 40 C.F.R. § 124.19(a). Consequently, “the accountability

of the permit issuer for providing a full, meaningful response to

comments is tempered by the commenter’s own responsibility to convey
PIO PICO ENERGY CENTER 37

its thoughts clearly in the first instance.” Scituate, 12 E.A.D. at 722; see

also, e.g., Sutter, 8 E.A.D. at 694 (noting that “authorities are not

expected to be prescient in their understanding of vague or imprecise

comments”); RockGen, 8 E.A.D. at 547-48 (“Absent such specificity, the

permit issuer cannot meaningfully respond to comments.”). As the

United States Court of Appeals for the District of Columbia Circuit has

explained:

[T]he “dialogue” between administrative agencies and

the public is a “two-way street.” Just as the

“opportunity to comment is meaningless unless the

agency responds to significant points raised by the

public,” so too is the agency’s opportunity to respond to

those comments meaningless unlessthe interested party

clearly states its position.

Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 1520

(D.C. Cir. 1988) (citations omitted), cert. denied, 489 U.S. 1078 (1989),

quoted in Scituate, 12 E.A.D. at 722; RockGen, 8 E.A.D. at 548; In re

Spokane Reg’l Waste-to-Energy, 2 E.A.D. 809, 816 (Adm’r 1989).

It is for this reason that, under the Agency’s permitting

regulations, it is well settled that “permit issuers need not guess the

meaning behind imprecise comments and are under no obligation to

speculate about possible concerns that were not articulated in the

comments.” Scituate, 12 E.A.D. at 723 (quotations and citations

omitted). Accordingly, “[g]eneralized or vaguely enunciated concerns

warrant no formal, particularized response and are not preserved for

review on appeal.” Id. at 723; accord Sutter, 8 E.A.D. at 694; RockGen,

8 E.A.D. at 547-48; Encogen, 8 E.A.D. at 251 n.12 (where an “issue is

raised only generically during the public comment period, the permit

issuer is not required to provide more than a generic justification for its

decision, and the petitioners cannot raise more specific concerns for the

first time on appeal”); cf. Portland Cement Ass’n v. Ruckelshaus,

486 F.2d 375, 394 (D.C. Cir. 1973) (stating in the rulemaking context

that “comments must be significant enough to step over a threshold
38 PIO PICO ENERGY CENTER

 Based on such concerns, the Supreme Court has explained that 24

“administrative proceedings should not be a game or forum to engage in unjustified

obstructionism by making cryptic and obscure references to matters that ‘ought to be’

considered and then, after failing to do more to bring the matter to the agency’s attention,

seeking to have that agency determination vacated on the ground that the agency failed

to consider matters ‘forcefully presented.’” Vt. Yankee Nuclear Power Co. v. NRDC,

435 U.S. 519, 553-54 (1978).

requirement of materiality before any lack of agency response of

consideration becomes of concern”), cert. denied, 417 U.S. 921 (1974).

Similarly, general references to documents in the record or to

other PSD projects, with no explanation as to the relevance of those

documents or projects to a PSD permit condition at issue, are insufficient

to preserve that issue for review. In re Maui Elec. Co., 8 E.A.D. 1, 8-12

(EAB 1998); see also Steel Dynamics II, 9 E.A.D. at 229 (declining to

reach the merits of an issue where petitioner failed in its comments to

identify specific NSR Manual language that provided the linchpin of its

arguments on appeal); cf. Northside, 849 F.2d at 1519 (holding, in an

analogous rulemaking context, that EPA’s failure to respond to specific

issues the petitioner claims on appeal were presented in its comments

was neither arbitrary nor capricious where petitioner had initially

submitted 420 pages of documents but “made no attempt to specify why

it considered those documents or anything in them relevant to the

rulemaking procedure”). If a commenter provides little or no

information or explanation about the applicability of a document, the

permit issuer runs the risk of assuming that the commenter submitted or

referred to the document to address a particular issue but then having the

commenter on appeal claim it intended the document to be submitted for

another reason. See, e.g., Steel Dynamics II, 9 E.A.D. at 229 n.71

(observing that, because petitioner had failed to point to the key language

supporting its position in its comments on the draft permit, the permit

issuer had construed the original comment differently).24

While the Board does not expect a pro se petitioner to comment

in great detail on every referenced or submitted document, study, or

report, the Board does expect a pro se petitioner to alert the permit issuer

as to the relevance of a particular document to the specific permit
PIO PICO ENERGY CENTER 39

 The text of the forwarded e-mail, which is addressed to Mr. Moore, states: 25

 

The attached MOU is a part of my comments. Please identify why

the District has a comment period, how commenting to the District

could have a different effect than commenting with the CEC, EPA

or CAR and how the public can affect the proposed permit with the

(continued...)

condition petitioner is challenging. See Sutter, 8 E.A.D. at 694 (noting

that raising issues on the draft permit with sufficient specificity is a

“principle no less important in the context of petitioners not represented

by counsel”); In re Envotech, LP, 6 E.A.D. 260, 268 (EAB 1996) (same);

cf. Northside, 849 F.2d at 1519-20 (explaining that while petitioner did

not have to comment “in great detail on every study,” it “should have

assumed at least a modicum of responsibility for flagging the relevant

issues which its documentary submissions presented”). Where an entire

document is not relevant, it would be advisable for a petitioner to point

to the section, paragraph, or provision of the document that is relevant

to the permit condition petitioner is challenging. Importantly, if this

were not the rule, commenters could inundate permit issuers with large

quantities of seemingly irrelevant reports,studies, and other documents,

thereby delaying the permit process for an inordinate length of time

while the permit issuer struggled to determine each of the documents’

potential relevance to the draft permit.

In light of these principles, the Board has reviewed all of the

e-mails and attachments Mr. Simpson submitted and concludes that the

Region did not err or abuse its discretion in not responding individually

to them. The relevance of the majority of Mr. Simpson’s attachments to

the Region’s Fact Sheet and draft permit conditions is unclear and very

few, if any, of the attachments appear related to the specific comments

Mr. Simpson raised in his initial e-mail. Some documents appear

irrelevant on their faces to the Region’s draft permit, such as the

forwarded e-mail Mr. Simpson originally sent to San Diego questioning

San Diego’s public comment process and requesting a comparison of San

Diego’s process to several other entities’ processes, including EPA’s,

and containing as an attachment a 1979 Memorandum of Understanding

(“MOU”) between the CEC and the California Air Resources Board.25
40 PIO PICO ENERGY CENTER

(...continued) 25

District as opposed to the CEC, EPA or CARB.

E-mail from Rob Simpson, Exec. Dir., Helping Hand Tools, to Roger Kohn, U.S. EPA

(July 18, 2012, 01:20 PDT) (A.R. VI.20). 

 The e-mail containing this document did state that “[t]his attachment supports 26

a no project alternative as the project is not needed.” E-mail from Rob Simpson, Exec.

Dir., Helping Hand Tools, to Roger Kohn, U.S. EPA (July 18, 2012 1:19 PDT). Even

with this statement, it is still not clear how the California guidance applies to EPA’s

permitting decision. 

Likewise, without any real explanation tying the two together, a CPUC

guidance document that sets forth standardized planning assumptions it

requires for the filing of resource plans seems wholly irrelevant to the

Region’s permitting decision. See E-mail from Rob Simpson, Exec. 26

Dir., Helping Hand Tools, to Roger Kohn, U.S. EPA (July 18, 2012,

01:19 PDT) (attaching CPUC, Standardized Planning Assumptions

(Part I) for System Resource Plans (filed Feb. 10, 2011)) (A.R. VI.15).

Other documents, such as the Jacobson study and the AES Energy

Storage presentation, appear generally relevant to greenhouse gas and/or

energy storage issues, but their pertinence to the Pio Pico draft permit is

not clear without any explanation. See Mark Z. Jacobson, Enhancement

of Local Air Pollution by Urban CO2 Domes, 44 Envtl. Sci. Tech. 2497

(2010); AES Energy Storage, Energy Storage for Flexible Peaking

Capacity (June 2012); see also Bill Powers, San Diego Smart Energy

2020, The 21st Century Alternative (Oct. 2007) (report providing a range

of potentially available clean and sustainable energy options for the San

Diego region).

A few of the documents are related to the proposed Facility and

thus their potential relationship to the PSD permitting process is a bit

more apparent. These documents, however, challenge the SDAPCD’s

conclusions and preliminary permitting decision for Pio Pico, not the

Region’s PSD permitting decision. Two of the documents, in fact, were

prepared and submitted prior to the issuance of the Region’s Fact Sheet

and draft permit and thus, based on their chronology, cannot explicitly
PIO PICO ENERGY CENTER 41

 The other document, which is a copy of testimony presented to the CEC, was 27

prepared during the comment period. See Rebuttal Testimony of Bill Powers, In the

Matter of the Application for Certification for the Pio Pico Energy Center, State of

California, Docket No. 11-AFC-01 (July 6, 2012). Its specified purpose was to

challenge:

[a] failure of the CEC to follow the Energy Action Plan loading

order in its analysis of alternatives to the proposed Pio Pico Energy

Center; b) failure of CEC to conduct detailed analysis of rooftop

solar as [an] alternative * * * consistent with the CEC determination

regarding rooftop solar in the 2009 denial of 100 MW Chula Vista

Energy Upgrade Project (CVEUP); c) failure of CEC to determine

solar resource availability in top 100 demand hours or to corroborate

whether Pio Pico can assure 98+ percent availability; d) failure of

CEC to evaluate low cost demand response alternatives to Pio Pico,

including but not limited to Ice Bear thermal storage units used

extensively by public utilities in Southern California; and e) the

failure of CEC to establish that the ancillary services to be provided

by Pio Pico cannot be met by peak load reduction measures

([discount rate], rooftop [photovoltaics]) or energy/thermal storage,

or why the ancillary services issue eliminates rooftop solar from

consideration in the case of Pio Pico but did not in the case of the

CVEUP.

 

Id. at 2. None of these challenges refer to the Region’s PSD permitting decision. Thus,

the document’s relevance to this PSD permit proceeding is unclear without some

explanation by the commenter identifying how and what portion of the testimony relates

to a PSD permit condition he is challenging.

challenge conditions of the draft PSD permit. See Letter from April 27

Rose Sommer, Esq., to Steven Moore, SDAPCD (Jan. 18, 2012)

(A.R. VI.26) (“Sommer SDAPCD Cmt.”); Letter from Rob Simpson to

Steven Moore, SDAPCD (Jan. 18, 2012) (A.R. VI.23). Significantly,

many of the comments do not appear to be even arguably relevant to the

PSD permit’s conditions or even PSD permits. For example, in many of

Mr. Simpson’s comments on the District’s preliminary determination of

compliance, he cites to and questions specific statements the District

made in its decision document. See, e.g., Letter from Rob Simpson to

Steven Moore at 2-10 (Jan. 18, 2012). The other document challenges

certain aspects of the District’s nonattainment permit, but different

standards apply to that permit, such as “LAER” (lowest achievable

emissions rate) and the requirement for emissions offsets. See, e.g.,
42 PIO PICO ENERGY CENTER

Sommer SDAPCD Cmt. at 2, 5 (discussing applicability of CAA section

7503 to the District’s permit, a provision of the Act that applies to

nonattainment permits, not PSD permits); compare NSR Manual pt. I

with id. pt. II; see also id. at G.1 (noting the different requirements

between the two permit programs). While comments challenging one

permit may be applicable to some degree to another permit, it is

incumbent upon the commenter to explain what portion of his or her

previous comment applies in the current PSD permitting context.

Otherwise, it is left to the second permitting authority to guess which

comments the commenter intends to apply to the second permitting

decision. This should be the commenter’s burden, not the permitting

authority’s.

Moreover, in this case, Mr. Simpson further confounded the

issue by stating, in his two-page e-mail, that he had submitted comments

to the SDAPCD, but that the District “failed to respond to my comments

and issued their decision. I hereby submit the same comments regarding

the Proposed PSD permit, in the following e-mail, and request that the

EPA revoke the air districts [sic] authority for its failure.” Simpson Cmt.

at 1. These statements suggest he may have been forwarding the

comments previously submitted to the District to the Region not to

challenge the PSD Permit, but for another purpose altogether.

For all of the above-mentioned reasons, the Board concludes that

Mr. Simpson has not demonstrated that the Region clearly erred or

abused its discretion by not providing detailed responses to

Mr. Simpson’s follow-up e-mails and attachments.

D. Helping Hand Tools Has Not Demonstrated That the Region Failed

to Adequately Address Comments About Air Quality Impacts on

Inmate Populations at Nearby Correctional Facilities

The Board next addresses Helping Hand Tools’ challenge to the

Region’s response to comments Mr. Sarvey raised. During the public

comment period, Mr. Sarvey raised concerns about the air quality impact

of the Pio Pico Facility on the nearby inmate population. Specifically,

Mr. Sarvey claimed that “[EJ] considerations require onsite monitoring
PIO PICO ENERGY CENTER 43

See supra note 17. 28

 Mr. Simpson raises a related but different issue in his petition, arguing that 29

the Region failed to utilize the correct air quality monitor. Simpson Pet. at 8. The Board

addresses Mr. Simpson’s argument later in this decision. See infra Part VIII.I. 

for a period of time to collect the data to provide proper background

concentrations to assess the air quality impact of the Pio Pico and the

Otay Mesa Project[s] on the large inmate populations.” RTC at 65. In

responding to this comment, the Region referred Mr. Sarvey to several

other responses in its response to comments document, which addressed

challenges to the location of the air quality monitors (responses 45 and

58) and comments about the scope of and the permit issuer’s obligations

under EO 12898 (response 54) and the cumulative air quality impacts

28

of the Pio Pico project (response 57). See id. (referring to responses 45,

54, 57 and 58). In addition, the Region explained that the PSD

cumulative impact analyses that were performed for particulate matter

2.5 less than 2.5 micrometers in diameter (“PM ”) and nitrogen dioxide

2

(“NO ”) included emissions from the Otay Mesa Power Plant and that

the Facility showed compliance with the applicable NAAQS. Id. at 66.

Helping Hand Tools challenges the adequacy of this response,

arguing that “[n]one of the * * * responses cited refer to on-site

monitoring at the correctional facilities to address the Environmental

Justice concerns.” Helping Hand Tools Pet. at 4. Therefore, Helping

Hand Tools argues, the Region “did not adequately respond to

[Mr. Sarvey’s] comment.” Id.

29

The Board disagrees. In this case, the Region’s response to

comments document addresses both the specific as well as related issues

to the concern Mr. Sarvey raised. By referring Mr. Sarvey to other

responses, the Region addressed the issue of the need for additional

monitoring to determine background concentrations, as well as the

Region’s obligation under EO 12898. While the Region’s response may

not have specifically stated that EJ considerations in this case do not

require monitoring at the correctional facilities, the response to

comments document clearly explains why in this case additional
44 PIO PICO ENERGY CENTER

 Notably, Helping Hand Tools does not provide, and the Board has not found, 30

any authority suggesting that EO 12898 mandates monitoring at the correctional facilities.

As explained earlier in this decision, EO 12898 requires federal agencies to identify and

address, as appropriate, disproportionately high and adverse human health or

environmental effects of its programs, policies, and activities on minority populations and

low-income populations. See supra note 17. The Executive Order, however, does not

dictate how federal agencies are to comply with such a mandate. Therefore, to suggest

that EO 12898 requires onsite monitoring at the correctional facilities mischaracterizes

the Executive Order’s mandate.

The Executive Order does, however, impart considerable leeway to federal

agencies in determining how to comply with the spirit and letter of the Executive Order.

Accord In re Avenal Power Ctr., LLC, PSD Appeal Nos. 11-02 through 11-05, slip op.

at 24 (EAB Aug. 18, 2011), 15 E.A.D. ___, appeal docketed sub nom. Sierra Club v.

EPA, No. 11-73342 (9th Cir. Nov. 3, 2011). An examination of EPA’s Plan EJ 2014, the

Agency’s roadmap for integrating EJ into its programs, policy and activities, also shows

that permitting authorities have discretion to determine how to best implement the

Executive Order’s mandate. See U.S. EPA, Plan EJ 2014 Progress Report (Feb. 2013),

available at http://www.epa.gov/environmentaljustice/; see also EPA Activities to

Promote EnvironmentalJustice in the Permit Application Process, 78 Fed. Reg. 27,220,

27,222 (May 9, 2013) (noting that each permit and community is different and that each

EPA regional office has the insight and experience to develop strategies tailored to the

particular communities and needs within the region). Nothing in EPA’s Plan EJ 2014

suggests that the Region was required to conduct onsite monitoring at the correctional

facilities before issuing the permit.

monitoring is not required. The Region’s response to comments 30

document explains: (1) why site-specific monitoring was not required,

RTC at 37-44; (2) why the monitoring locations selected were adequately

representative of background air quality in the area, id.; (3) why

monitoring near the Donovan prison was not required, id. at 44; and

(4) that data from Otay Mesa were evaluated in the cumulative impacts

analysis and Otay Mesa Power Plant emissions were considered in the

modeling analysis, id. at 55, 64-65.

The response to comments document also makes clear that the

Region was fully aware of the nearby correctional facilities and of its

obligations pursuant to EO 12898. See RTC at 56-63. The Region

explained that it had “considered the demographic and other information

concerning the populations at correctional facilities provided by the

commenter[, and] * * * the unique conditions, such as overcrowding,
PIO PICO ENERGY CENTER 45

 These are known as “primary standards.” See CAA § 109(b)(1), 42 U.S.C. 31

§ 7409(b)(1).

These are known as “secondary standards.” See CAA § 109(b)(2), 42 U.S.C. 32

§ 7409(b)(2).

See, e.g., Avenal Power, slip op. at 22 , 15 E.A.D. at __; Shell Offshore 2007,

33

13 E.A.D. at 404-05 (EAB 2007); Knauf II, 9 E.A.D. at 16-17; In re Ash Grove Cement

Co., 7 E.A.D. 387, 417-18 (EAB 1997).

 The Region’s determination appears consistent with Agency practice. See 34

In re Shell Gulf of Mex. Inc. (“Shell Gulf of Mex. 2010”), OCS Appeal No. 10-01

through 10-04, slip op. at 69-75 (EAB Dec. 30, 2010), 15 E.A.D. __; id. at 74, 15 E.A.D.

at __ (“The Board relies on and defers to the Agency’s cumulative expertise when

upholding a permit issuer’s environmental justice analysis based on a proposed facility’s

compliance with the relevant NAAQS in a PSD appeal. In the context of an

environmental justice analysis, compliance with the NAAQS is emblematic of achieving

a level of public health protection that, based on the level of protection afforded by a

(continued...)

social vulnerability and health related issues, impacting the prison

communities located near the proposed Project site.” Id. at 60. The

Region also explained that the EJ Analysis determined that the modeled

results of the NAAQS analysis indicate that proposed emissions of the

pollutants regulated under the PSD permit for Pio Pico would not cause

or contribute to a violation of the NAAQS. Id. at 59-60, 66.

NAAQS are standards designed to protect public health,

including the health of “sensitive” populations such as asthmatics,

children, and the elderly, with an adequate margin of safety, and to 31

protect public welfare, including protection against visibility impairment

and damage to animals, crops, vegetation, and buildings. Because 32

NAAQS are health-based standards, the Agency often uses compliance

with the NAAQS in the context of environmental justice as an indicator

that Agency action will not result in disproportionately high and adverse

human health or environmental effects on minority and low-income

populations residing near a proposed facility. In this case, the Region 33

relied on the results of the NAAQS analysis to determine that monitoring

at the correctional facilities was not necessary. Helping Hand Tools

does not question this determination.34
46 PIO PICO ENERGY CENTER

(...continued) 34

primary NAAQS, demonstrates that minority or low-income populations will not

experience disproportionately high and adverse human health or environmental effects

due to exposure to relevant criteria pollutants.”). Therefore, absent a demonstration that

the Region clearly erred in relying on the NAAQS, the Board will not second-guess the

Region’s technical judgment.

 To the extent that Helping Hand Tools attempts to challenge the Region’s 35

rationale for concluding that onsite monitoring at the correctional facilities was

unnecessary, the petition falls short. Petitioner has failed to demonstrate why the

Region’s response to comments is clearly erroneous.

 For a description of the NSR Manual’s top-down method for BACT, see 36

supra Part VII.

In sum, it is clear from the response to comments document as

a whole that the Region considered the air quality monitoring

information already available to be sufficient to ensure that the nearby

inmate communities will not experience disproportionately high and

adverse human health or environmental effects from the Facility, and

thus, determined that additional monitoring at the correctional facilities

was unnecessary. See RTC at 55-62. The Board therefore concludes

that the Region’s response to comments document adequately addresses

Mr. Sarvey’s concerns about air quality impacts on inmate populations

at nearby correctional facilities and that Helping Hand Tools has not

demonstrated otherwise. 

35

E. Petitioners Have Not Demonstrated That the Region Clearly Erred

in Eliminating Combined-Cycle Gas Turbines in Step 2 of Its BACT

Analysis for Greenhouse Gases (“GHGs”) or That the Issue

Otherwise Warrants Review or Remand

Using the NSR Manual to perform its BACT analysis for

GHGs, the Region eliminated combined cycle gas turbines from further

36

BACT consideration at step 2. Fact Sheet & AAQIR at 15-17. The

Region believed technical difficulties “would preclude successful

deployment of a combined-cycle operation” at the Facility and thus

concluded that the control technology would be “technically infeasible.”

RTC at 27 (summarizing and explaining its initial determination); accord
PIO PICO ENERGY CENTER 47

 The Board notes that Mr. Simpson did not number the pages in his petition. 37

In referring to the page numbers in his petition, the Board considers “page one” to be the

first page of the PDF version of the docketed document.

 “Cold starts” typically refers to startups that occur more than forty-eight 38

hours after shutdown. Russell City, slip op. at 32 n.17, 15 E.A.D. at __.

 For a more detailed description of the CPUC decision, see supra Part V. 39

Fact Sheet & AAQIR at 16-17. In NSR Manual parlance, the Region

essentially concluded that combined-cycle technology was not

technically feasible because the technology was not “applicable” to the

Facility. See RTC at 27; NSR Manual at B.18. 

Sierra Club and Mr. Simpson both challenge the Region’s

decision to eliminate combined-cycle gas turbine technology from the

GHG BACT analysis. Mr. Simpson generally questions the Region’s

failure to select combined-cycle gas turbines as BACT. Simpson Pet.

at 7-8. Sierra Club specifically challenges the Region’s step 2 analysis, 37

essentially questioning the definition of “source type” the Region used

in its analysis. Sierra Club Pet. at 11, 13-18. Sierra Club also questions

the basis for the Region’s selection of cold start and ramp rates. Id.

38

at 18. In response, the Region and Pio Pico contend that review of all

these issues should be denied on procedural grounds. In particular, both

argue that the Board should reject Mr. Simpson’s argument because he

does not explain why the Region’s responses to comments on this issue

were incorrect, Region Resp. at 22; Pio Pico Resp. at 14-15, and should

similarly reject Sierra Club’s arguments because Sierra Club did not

raise them in the comments it submitted on the draft permit, Region

Resp. at 15-16; Pio Pico Resp. at 5.

On a somewhat different note, both petitioners also argue that

the Region’s BACT analysis for GHGs should be remanded in light of

the CPUC’s recent decision that essentially prohibits SDG&E from

entering into a long-termpurchase agreement with Pio Pico at this time.39

 See, e.g., Simpson Pet. at 7; Sierra Club’s Brief in Response to

Supplemental Briefs (“Sierra Club Suppl. Br. in Resp. to Board Order”)

at 5; Status Conf. Tr. at 42-43, 49-52, 54, 64. They claim that, because
48 PIO PICO ENERGY CENTER

the Region referred to SDG&E’s 2009 Request for Offers (“RFO”) and

the power purchase agreement multiple times throughout the

administrative record, the CPUC decision undermines the “foundational

elements” of the Region’s decision. See, e.g., Sierra Club Suppl. Br. in

Resp. to Board Order at 5.

As noted in Part III, a petitioner challenging an issue that is

fundamentally technical in nature bears a particularly heavy burden

because the Board generally defers to the permit issuer on questions of

technical judgment. The Board has also stated, however, that BACT

determinations, which are generally technical in nature, are one of the

most critical elements in the PSD permitting process and thus should be

well documented in the record. In re Indeck-Elwood, LLC, 13 E.A.D.

126, 134 (EAB 2006); In re Newmont Nev. Energy Inv., LLC, 12 E.A.D.

429, 442 (EAB 2005); Knauf I, 8 E.A.D. at 131. In particular, “[a]

permitting authority’s decision to eliminate potential control options as

a matter of technical infeasibility * * * must be adequately explained and

justified.” Knauf I, 8 E.A.D. at 131; see also In re Cardinal FG Co.,

12 E.A.D. 153, 167 (EAB 2005) (explaining Board’s standard of review

for technical infeasibility); In re Pennsauken Cnty., NJ, Resource

Recovery Facility, 2 E.A.D. 667, 672 (Adm’r 1988) (remanding PSD

permit decision because the BACT analysis did not contain the level of

detail and analysis necessary to show that a particular technology was

technically or economically unachievable). Of particular relevance to

the present issue, the Board has distinguished between two types of

BACT cases: those in which the permit issuer failed to consider a

control option and those where the option was considered but rejected.

In cases where the permit issuer evaluated and rejected an alternative

control option, “those favoring the option must show that the evidence

‘for’ the control option clearly outweighs the evidence ‘against’ its

application.” In re Inter-Power of N.Y., Inc., 5 E.A.D. 130, 144

(EAB 1994); accord Cardinal, 12 E.A.D. at 167; In re Three Mountain

Power, LLC, 10 E.A.D. 39, 50 (EAB 2001); In re Maui Elec. Co.,

8 E.A.D. 1, 15 (EAB 1998).

In light of this standard and the parties’ arguments, the Board

must resolve several subissues in deciding the overarching issue of
PIO PICO ENERGY CENTER 49

whether these two petitioners have demonstrated that the Region clearly

erred in eliminating combined-cycle gas turbines in its BACT analysis

for GHGs or that this issue otherwise warrants review or should be

remanded. First, with respect to his general challenge to the elimination

of combined-cycle gas turbines, has Mr. Simpson confronted the

Region’s responses to comments and explained why they were clearly

erroneous? Second, has Sierra Club preserved any of its substantive

issues for review? Third, on the issue of defining the “source type,”

which the Board will treat as preserved, has Sierra Club demonstrated

that the Region defined “source type” too narrowly in step 2? Fourth, do

the Region’s referencesto the power purchase agreement and RFO in its

BACT analysis necessitate a remand in light of the recent CPUC

decision? After describing the Region’s step 2 analysis, the Board

considers the procedural issues before turning to the substantive issues.

1. The Region’s Step 2 Analysis

In step 2 of its BACT analysis for GHGs, the Region considered

several factors in assessing the technical feasibility of combined-cycle

gas turbine technology for the Facility. The Region first considered the

type of facility (i.e., the source) that the applicant proposed to build.

Throughout its Fact Sheet, the Region explained that the proposed

facility is intended to be a peaking plant and/or intermediate loadshaping facility that provides up to 300 MW of power. Fact Sheet &

AAQIR at at 3 (300 MW “peaking”), 10 n.4 (“peaking and load

shaping”), 16 (“peaking applications”), 18-19 (“peaking and load

shaping”); see also RTC at 6 (“peaking”), 23 (“peaking”), 28 (citing the

RFO’s reference to the facility as a 300 MW “peaking and

intermediate-class resource”). In characterizing the purpose and design

of the proposed facility, the Region relied on statements made by Pio

Pico in its application. See, e.g., Fact Sheet & AAQIR at 4 n.10 (citing

Application to the U.S. EPA for a Prevention of Significant Deterioration

Permit, Pio Pico Energy Center, San Diego County, California, at 2.1

(rev’d Sept. 2011) (A.R. I.15) [hereinafter Revised Application] ); see

also Revised Application at 2.2, 3.55 (noting that the Facility “is

designed as a simple-cycle, peaking, and intermediate load”), 3.9. Both

the Region and Pio Pico explained that the reason behind the facility’s
50 PIO PICO ENERGY CENTER

 According to Pio Pico, each turbine takes 10 minutes to reach full capacity 40

and thus, if all three are started up at the same time, the three turbines should reach a

combined load of 300 MW within 10 minutes, not 30. Pio Pico Resp. at 6 n.1.

Consequently, the Region’s references to “30 minutes” are incorrect and should read

“10 minutes.” Id. Because, for the purposes of the following analysis, it does not matter

whether the turbines reach full capacity at 10 minutes or at 30 minutes – the time

differential between 31⁄2 hours and either 10 or 30 minutes is still significant – the Board

will retain and use the Region’s references to 30 minutes in the remainder of the decision.

purpose and design was “to directly satisfy the San Diego area demand

for peaking and load-shaping generation, near and long term.” Revised

Application at 2.1; accord Fact Sheet & AAQIR at 10 n.4. 

The Region also emphasized that the project was intended to

support renewable power generation. Fact Sheet & AAQIR at 10 n.4, 16.

According to the Region, “[the Facility’s] capacity for frequent and fast

turbine startups will provide necessary power to compensate for the

intermittent nature of wind and solar generation, and thus will ultimately

provide critical support for the growth of renewable energy sources in

the area.” Fact Sheet & AAQIR at 10 n.4. 

Based on these considerations, the Region stated in the Fact

Sheet that “in order to satisfy its business purpose, the [Facility] must be

able to offer units that: 1) are highly flexible and that can provide

regulation during the morning and evening ramps, 2) can be repeatedly

started and shut down as needed, and 3) can be brought online quickly,

even under cold-start conditions.” Fact Sheet & AAQIR at 16; accord

id. at 10 n.4. The Region then explained that “the complete startup time

for a combined-cycle plant is typically longer than that of a

similarly-sized simple cycle plant.” Id. at 16 (emphasis added). Thus,

according to the Region, the simple-cycle turbines proposed for the

Facility “can be dispatched from ‘cold iron’ to 300 MW in less than

30 minutes. By comparison, the most likely combined-cycle

[40]

alternative in [General Electric Company’s (“GE’s”)] product offering

– a 107FA power block – would be capable of providing at most

160 MW in approximately the same amount of time.” Id. (footnotes and

references omitted). The Region further noted that, “[e]ven with faststart technology, new combined-cycle units like the GE 7FA may require
PIO PICO ENERGY CENTER 51

up to 31⁄2 hours to achieve full load under some conditions. These longer

startup times are incompatible with the purpose of the Project to provide

quick response to changes in the supply and demand of electricity.” Id.

at 17. 

During the public comment period, several commenters

questioned the Region’s conclusion that combined-cycle gas turbines

would not be technically feasible for the proposed plant. See, e.g., Letter

from William Corcoran, Reg’l Dir., Sierra Club, to Roger Kohn, U.S.

EPA, Region 9, at 2-5 (July 24, 2012) (A.R. VI-33) [hereinafter Sierra

Club Cmt.]; E-mail from Robert Sarvey to Roger Kohn, U.S. EPA,

attach. at 4-5 (July 24, 2012) (A.R. VI.36) [hereinafter Sarvey Cmt.].

Sierra Club raised two issues. It first argued that Pio Pico’s CEC

application listed a different purpose than did the Region’s Fact Sheet.

Sierra Club Cmt. at 3 (citing CEC Staff Report at 3-1). According to

Sierra Club, the former document lists the purpose of the Facility as

providing a “minimum of 100 megawatts (MW) of peaking and

intermediate-class resources.” Sierra Club Cmt. at 3 (citing CEC Staff

Report at 3-1). Sierra Club believed that, because the Region’s Fact

Sheet stated that a 107FA power block combined-cycle plant could

achieve quick start capacity of at least 160 MW, this technology should

be considered in the Region’s BACT analysis and would meet the

Facility’s purpose as described in the State application. Id. Second,

Sierra Club contended that a combined-cycle gas turbine could be used

if the Facility was “sufficiently sized so that it could produce 300 MW

with the turbines alone in 30 minutes.” Id. at 4. In connection with this

point, Sierra Club stated that, according to a study by Henkel, “with

certain upgrades, a 400 MW [combined-cycle gas turbine] can reach full

power within 40 minutes after a cold start.” Id. at 5. Another

commenter, Mr. Sarvey, asserted that “modern combined cycle projects

have start times that are similar to ‘simple cycle peaker plants’” and

referred to certain units proposed for use at the Willow Pass Generating

Station. Sarvey Cmt. at 4-5.

The Region addressed the commenters’ concerns and

suggestions in the response to comments document. See RTC at 27-30,

52-54. Among other things, the Region reiterated and further explained
52 PIO PICO ENERGY CENTER

its conclusion regarding the technical feasibility of combined-cycle gas

turbines, clearly indicating that it found the control technology to be

“inapplicable”:

EPA disagrees with the commenter that combined cycle

gas turbines are technically feasible for this project for

the reasons explained in detail in our Fact Sheet. For

example, EPA has long held that when assessing the

technical feasibility of a control technology, it is

appropriate to consider whether the technology may

reasonably be deployed on, or is applicable to, the

source type under consideration. Our Fact Sheet for the

Proposed Permit clearly explained that the longer

startup times are not compatible with the operational

characteristics of the proposed facility and that these

technical difficulties would preclude successful

deployment of a combined cycle operation in this case.

RTC at 27 (emphasis added). 

The Region next addressed Sierra Club’s comment regarding the

project’s “purpose” as described in the CEC application. RTC at 28-29.

The Region stated that “[i]n our view, the statement that the Project

should include ‘a minimum of 100 megawatts’ merely specifies a

minimum requirement.” Id. at 28 (emphasis added). The Region also

specifically addressed Sierra Club’s suggestions about resizing the plant

and using other potential configurations so that combined-cycle gas

turbines could be used at the Facility. Id. at 29-30. The Region stated:

The commenter suggests, for example, that a combined

cycle plant could be sized so that it is capable of

producing 300 MW in the first 30 minutes without the

aid of the [heat recovery steam generator] and steam

generator. The commenter then suggests that once the

[heat recovery steam generator] and steam generator are

fully functional, the fuel supply could be scaled back.

We find this notion to be ill-supported and
PIO PICO ENERGY CENTER 53

unpersuasive. To follow the commenter’s suggestion

would be to grossly oversize the facility and require the

applicant to procure, construct, and maintain additional

generating capacity that it may never use and that is

inconsistent with the power purchase agreement that

serves as the fundamental basis for the project.

Furthermore, gas turbines (whether simple cycle or

combined cycle) are much less efficient when operated

at lower loads. The commenter has not demonstrated

that a combined cycle plant that islarger than necessary

but then operated at partial loads would be more

efficient than this Project. We also note that the

commenter has misrepresented what the Henkel report

says. The report in fact states that with certain

upgrades, a start-up time of less than 40 minutes is

possible for a 400 MW combined cycle plant after an

overnight shutdown. This describes hot start, not cold

start conditions. 

Id. at 30.

Finally, in response to comments referencing combined-cycle

units at Willow Pass Generating Station, the Region stated that the

information was unpersuasive because “[a] permit for this facility was

never proposed or finalized, and we were recently notified by the Bay

Area [Air Quality Management District] that the application for this

facility has been cancelled.” Id. at 53. The Region further noted that the

unit at issue “has a net generating capacity of 275 MW and it can operate

down to a minimum load of 60 percent, or approximately 165 MW,”

whereas the units proposed for Pio Pico “have a practical operating range

down to 50 MW.” Id. at 53-54. The Region explained that, as it had

discussed in its Fact Sheet, “it is a necessary element of the Project to

operate over a wide range of loads and the unit suggested by the

commenter is not capable of satisfying that objective.” Id. at 54.
54 PIO PICO ENERGY CENTER

 Mr. Simpson additionally asserts that the Region “ignored [his] comments

41

on the matter.” Simpson Pet. at 8. He does not, however, indicate what specific

comments the Region allegedly ignored or where he raised such comments. Upon review

of Mr. Simpson’s two-page comment letter, the Board is unable to locate any comment

that is related to the Region’s BACT analysis for GHGs. See generally Simpson Cmt.

at 1-2. As discussed in Part VIII.C, Mr. Simpson submitted a number of reports, studies,

and other documents to the Region as attachments to a series of e-mails, but failed to

include any explanation or argument as to those documents’ relevance to these PSD

proceedings. Insofar as Mr. Simpson may be claiming that there is something within

those documents that he intended as a comment on the Region’s BACT and/or GHG

analysis, the Board has already determined that the Region did not clearly err or abuse

its discretion by not providing a detailed response to those particular comments. Because

it is Petitioner’s burden on appeal to demonstrate that Board review of an issue is

warranted, without specific reference to or evidence of an allegedly “ignored”

BACT/GHG comment, the Board is unpersuaded that the Region erred in ignoring such

a comment. Furthermore, as Mr. Simpson himself points out in connection with this

argument, the Region did “repl[y] to another commenter” on this issue. Simpson Pet.

at 7-8 (quoting the Region’s summary of the other comment and part of the Region’s

response to it). The Region is not required “to respond to each comment in an

individualized manner.” In re NE Hub Partners, LP, 7 E.A.D. 561, 583 (EAB 1998),

review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999). It is

only required to respond to all significant comments, see id., which it did regarding this

issue. See RTC at 27-30, 53-54. For these reasons, review of this issue is denied. 

2. Mr. Simpson Failed to Confront the Region’s Responses to

Comments and Explain Why They Were Clearly Erroneous

on His General Challenge to the Region’s Elimination of

Combined-Cycle Gas Turbines as BACT

In his petition, Mr. Simpson generally challenges the Region’s

BACT analysis for GHGs, asserting that the Region “should have

required a combined-cycle configuration as BACT.” Simpson Pet. at 8. 41

Mr. Simpson, however, fails to address the Region’s responses to

comments on these same issues or explain why the Region’s

explanations were clearly erroneous. He merely recites statements from

the response to comments document. See id. at 7-8 (quoting RTC at 53-

54). Furthermore, contrary to Mr. Simpson’s implication, see id. at 7,

the Region did in fact “address” the relevant “factors” that led it to select

single-cycle over combined-cycle gas turbines. See RTC at 27-30, 53-

54; see also infra Part VIII.E.1 (summarizing and discussing the

Region’s analysis). 
PIO PICO ENERGY CENTER 55

As the Board has explained on many occasions, petitioners must

describe each objection they are raising and explain why the permit

issuer’s response to petitioners’ comments during the comment period

is clearly erroneous or otherwise warrants consideration. E.g., In re City

of Palmdale, PSD Appeal No. 11-07, slip op. at 32-34 (EAB Sept. 17,

2012), 15 E.A.D. __, appeal docketed sub nom. Simpson v. EPA,

No. 12-74124 (9th Cir. Dec. 18, 2012); In re Deseret Power Elect.

Coop., PSD Appeal No. 07-03, slip op. at 20 (EAB Nov. 13, 2008),

14 E.A.D. __; In re Peabody W. Coal Co., 12 E.A.D. 22, 33 (EAB 2005);

In re Indeck-Elwood, LLC, 13 E.A.D. 126, 143, 170 (EAB 2006) (“[A]

petitioner’s failure to address the permit issuer’s response to comments

is fatal to its request for review.”); see also supra Part III. Here,

Mr. Simpson has failed to do so. Merely disagreeing with the Region’s

conclusion and alleging error is insufficient to overcome his burden of

demonstrating that the Region clearly erred and therefore review is

warranted, especially in this case where the Region provided a lengthy

discussion of its rationale. See, e.g., Russell City, slip op. at 91-92,

15 E.A.D. at __; In re Ash Grove Cement Co., 7 E.A.D. 387, 404

(EAB 1997) (“General allegations of error, without a more specific

showing * * *, are not sufficient to obtain Board review.”). 

Moreover, as noted above, where an alternative control option

has been evaluated and rejected, those favoring the option must show

that the evidence “for” the control option clearly outweighs the evidence

“against” its application. See supra Part VIII.E; see also infra discussion

Part VIII. E.4.b. By neglecting to address the Region’s analysis

whatsoever, Mr. Simpson has also failed to demonstrate that the

evidence for combined-cycle gas turbines clearly outweighs the evidence

against its application. See Maui Elec., 8 E.A.D. at 15 (denying review

where petitioner failed to discuss the permit issuer’s response to

comments explaining why it rejected a control technology and thus failed

to demonstrate why its evidence clearly outweighed the permit issuer’s

evidence). For these reasons, the Board denies review of Mr. Simpson’s

generalized claims regarding the Region’s elimination of combined-cycle

gas turbines from its BACT analysis for greenhouse gases.
56 PIO PICO ENERGY CENTER

3. Sierra Club Has Preserved One of Its Substantive Issues for

Review

Sierra Club challenges the substance of the Region’s step 2 GHG

BACT analysis on two primary grounds. Sierra Club first contends that

the Region improperly defined “source type” for purposes of the

technical feasibility analysis “based on design-specific attributes of its

preferred production process, to the exclusion of cleaner production

processes.” Sierra Club Pet. at 11. According to Sierra Club, if the

Region had properly defined “source type,” the Region would have

concluded that combined-cycle gas turbines are “demonstrated” within

the meaning of the step 2 analysis and thus would not have eliminated

the technology at that step. Id. at 15-16. 

Within this section of its brief, Sierra Club also questions the

basis for the startup and ramp rates the Region used in its analysis.

Sierra Club claims that, although the Region states that the production

process must achieve a startup rate of 100 MW in 10 minutes and

300 MW in 30 minutes, “nothing in the record specifies this particular

rate.” Id. at 18. Thus, according to Sierra Club, the rates are “not based

on any record evidence” but instead on “vague, generalized, narrative

descriptions” of the Facility’s operating parameters, which it believes to

be inappropriate in the BACT context.

As explained in Part III, in order for an issue to be preserved for

purposes of administrative review, it must have been raised before the

permitting authority during the public comment period (including any

public hearings), unless the issue was not reasonably ascertainable

during the comment period. On occasion, where the permit issuer’s

reasoning on an issue was not clearly ascertainable from the record at the

draft permit stage but was later clarified following the close of the

comment period (for example, in the response to comments document or

during the appeal process), the Board has considered the issue on appeal,

concluding that such issue had not truly been “reasonably ascertainable.”

See, e.g., In re Prairie State Generating Co., 13 E.A.D. 1, 45 n.41

(EAB 2006) (“Because [the permit issuer]’s analysis explaining why it

was rejecting [the control option] was not provided in the record prior to
PIO PICO ENERGY CENTER 57

 In its reply, Sierra Club did not respond to the Region’s contention that the 42

Board should deny review of these claims on procedural grounds. 

the public comment period, but instead was provided for the first time in

response to comments, [the permit issuer]’s reasoning was not

ascertainable before the close of public comment and may be challenged

for the first time on appeal.”), aff’d sub nom. Sierra Club v. EPA,

499 F.3d 653 (7th Cir. 2007); In re Campo Landfill Project, 6 E.A.D.

505, 517-19 (EAB 1996) (considering issue that became clear in the

permit issuer’s response to the petition, but “was not so clear as to be

‘reasonably ascertainable’ during the public comment period”).

Sierra Club raised two issues about the Region’s technical

feasibility analysis in its comments on the draft permit, first pointing to

differences between the “purpose” listed in Pio Pico’s CEC application

and the purpose noted in the Region’s Fact Sheet, and second asserting

that combined-cycle gas turbines could be feasible if the proposed

facility was sized substantially larger. Sierra Club Cmt. at 3-5. Sierra

Club did not, however, clearly raise the question of the appropriate

“source type” definition that should be used in a step 2 BACT analysis,

nor did it question the basis for the Region’s startup and ramp rates.

These issues, therefore, are potentially procedurally barred.

42

Nonetheless, the Board will consider the substance of the first

issue – the Region’s definition of “source type” – below. This particular

issue is arguably a natural progression from the comments Sierra Club

did raise concerning step 2 of the Region’s greenhouse gas BACT

analysis and the Region’s responses to those comments. See, e.g., In re

Cape Wind Assoc., OCS Appeal No. 11-01, slip op. at 12 (EAB May 20,

2011), 15 E.A.D. __ (explaining that the appropriate time to question

information the permit issuer added to the administrative record in

response to public comments is in an appeal to the Board); In re NE Hub

Partners, LP, 7 E.A.D. 561, 587 n.14 (EAB 1998) (same), review denied

sub. nom Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3d Cir. 1999). It

appears that Sierra Club may have recognized from the Region’s

responses to comments that the real dispute between the parties related

to the differing interpretations of “source type” within the BACT step 2
58 PIO PICO ENERGY CENTER

analysis. It was not until the Region’s responses to comments that it

became clear that the Region had determined that the technology was

technically infeasible under step 2 because the Region had found it to be

“inapplicable.” See RTC at 27 (using the term “applicable” as well as

stating that technical difficulties would preclude the “successful

deployment” of a combined-cycle operation, a term that is typically used

in an “applicability” assessment). It also became clearer in the response

to comments document that the Region’s conclusion was significantly

influenced by the 300 MW design element: the Region’s listing of key

operational factors in the Fact Sheet did not include the size of the

facility per se, see Fact Sheet & AAQIR at 16 (listing three factors), but

in its responses to comments, the Region emphasized the importance of

the Facility’s 300 MW power output to a much greater degree, see, e.g.,

RTC at 28-30. On the other hand, Sierra Club did mention the 300 MW

in the comments it submitted, suggesting its awareness that size affected

the Region’s decisionmaking.

Moreover, not only is the issue Petitioner raises here – the proper

definition of “source type” within the meaning of step 2 of a BACT

analysis – an issue of first impression before the Board, it is also a

critical question that, in certain cases, can affect the entire BACT

determination. If permitting authorities define “source type” too

narrowly, this practice could lead to the elimination of technologies that

should have been selected as “[t]he most effective control option” in

step 5. NSR Manual at B.9. Given the importance of this key

interpretive issue, the Board will resolve any ambiguity as to whether

this issue was reasonably ascertainable in favor of the petitioner. See

Campo, 6 E.A.D. at 519. Accordingly, the Board declines to deny

review of this issue on procedural grounds as the Region requests and

will address the substance of the issue in the next section.

The Board does, however, conclude that Sierra Club failed to

preserve its challenge to the particular cold start and ramp rates upon

which the Region relies. The statements Sierra Club questions are

contained in the Region’s Fact Sheet, but Sierra Club did not object to

the selected rates during the comment period. See Sierra Club Cmt. at 2-

5. Sierra Club, in fact, referred to the 30 minute/300 MW requirement
PIO PICO ENERGY CENTER 59

in its comments, but did not challenge the basis of those selected

numbers. See id. at 4. Because this issue was reasonably ascertainable

and Sierra Club failed to raise it during the comment period, Sierra Club

failed to preserve the issue for review, and thus may not raise it now.

Accordingly, the Board declines review of this latter issue. 

4. Sierra Club Has Not Demonstrated That the Region Defined

“Source Type” Too Narrowly in Step 2

a. NSR Manual Step 2: Question of Technical Feasibility

In step 2 of the NSR Manual’s “top-down” BACT analysis,

permit issuers eliminate “technically infeasible” options from the

potentially available control options identified in step 1. NSR Manual

at B.7. Step 2 involves first determining for each technology whether it

is “demonstrated,” or in other words, whether it has been “installed and

operated successfully on the type of source under review.” Id. at B.17.

If a technology has not been “demonstrated,” the analysis becomes

“somewhat more involved,” requiring a determination of whether the

technology is both “available” and “applicable.” Id.

An “available” technology is one that “can be obtained through

commercial channels or is otherwise available within the common sense

meaning of the term.” Id. An “applicable” technology is one that “can

reasonably be installed and operated on the source type under

consideration.” Id. Thus, a commercially available control technology

will generally be presumed applicable “if it has been or is soon to be

deployed (e.g., is specified in a permit) on the same or a similar source

type.” Id. at B.18. On the other hand, “[a] showing of unresolvable

technical difficulty with applying the control would constitute a showing

of technical infeasibility (e.g., size of the unit, location of the proposed

site, and operating problems related to specific circumstances of the

source).” Id. at B.19 (emphasis added). Technical infeasibility is

typically demonstrated based on “a technical assessment considering

physical, chemical and engineering principles * * * showing that the

technology would not work on the emissions unit under review, or that

unresolvable technical difficulties would preclude the successful
60 PIO PICO ENERGY CENTER

 Pio Pico seems to interpret this and other similar statements to mean that 43

Sierra Club is arguing that “the Region erred by finding a combined cycle plant to be

technologically infeasible under Step 2 of its BACT analysis instead of under Step 1 of

the analysis.” Pio Pico Resp. at 5; accord id. at 9. The Board does not read Sierra Club’s

petition to raise this issue, which would be inconsistent with its overarching position that

the BACT emission limits for GHGs at the Facility should be based on combined-cycle

(continued...)

deployment of the technique.” Id. at B.20; see also Indeck, 13 E.A.D. at

134 (“A technology is applicable only if it can be ‘reasonably installed

and operated on the source type under consideration,’ in light of how the

particular control option has been used in the past and how that past use

compares to the proposed project.” (quoting NSR Manual at B.17)).

Notably, the NSR Manual provides that “[t]echnical judgment on the part

of the applicant and the review authority is to be exercised in

determining whether a control alternative is applicable to the source type

under consideration.” NSR Manual at B.18. 

Technologies identified in step 1 as “potentially” available, but

that are neither “demonstrated” nor found after careful review to be both

“available” and “applicable,” are eliminated under step 2 from further

BACT analysis. See id. at B.7, B.17-B.21.

b. The Region’s Step 2 Analysis Was Consistent With

the NSR Manual and Board Case Law

In its petition, Sierra Club challenges the Region’s technical

feasibility analysis on the ground that the Region improperly “rejected

the combined-cycle production process because it determined that the

assumed startup times of the particular technology [Pio Pico] selected to

meet SDG&E’s 2009 RFO defined the ‘source type’ within the meaning

of a Step 2 analysis.” Sierra Club Pet. at 14. According to Sierra Club,

“‘source type’ refers to a general category of emissions sources, not to

specific design elements of a specific proposed facility.” Id. Sierra Club

further asserts that, by relying on the RFO, “the Region is doing in

Step 2 of the BACT analysis what it is prohibited from doing in Step 1

– eliminating a control technology by narrowly defining the purpose of

the project to preclude the use of applicable control technologies.” Id.

43
PIO PICO ENERGY CENTER 61

(...continued) 43

gas turbines.

 On appeal, none of the parties have pointed to anything in the administrative 44

record suggesting that this technology has been used in a similar peaking and or

peaking/intermediate-class facility. Although one commenter cited a facility where the

technology had allegedly been proposed for use, upon investigation, the Region

determined that the permit in question had never been proposed or finalized. RTC at 53.

The Region properly discounted Willow Creek’s alleged usage of combined-cycle

technology as “demonstrated.” Id. at 53-54; see NSR Manual at B.17.

In essence, Sierra Club is claiming that the Region defined “source type”

too narrowly in step 2 and, in doing so, improperly concluded that the

technology was not “demonstrated.” For the following reasons, Sierra

Club’s arguments are insufficient to show that the Region clearly erred

in its definition of “source type” and in its technical feasibility analysis.

Here, in order for the Region to have determined that combinedcycle gas turbines are “inapplicable” to the “source type” in question, the

Region must first have concluded that combined-cycle gas turbines have

not been installed or operated successfully (i.e., are not “demonstrated”)

on the “type of source” under review. NSR Manual at B.17. Sierra Club

asserts that such a conclusion is erroneous because “[h]undreds of such

facilities exist in the United States.” Sierra Club Pet. at 16. The Board

presumes that Sierra Club is largely referring to the technology’s use in

base load and/or intermediate-only load facilities, for which this

statement would be true. Based on this statement, Sierra Club intimates 44

that “source type” should include all gas-fired electric generating plants.

Sierra Club further asserts that, in order for the Region to have

come to its “demonstration” conclusion, it must have defined “source

type” to include only the “qualities specific to [the Facility].” See id.

at 15-16. Sierra Club argues that this approach is erroneous based on the

dictionary definition of “type,” which “refers to a group, category, or

class and not to a particular applicant or a particular facility’s unique

design elements.” Id. at 15 (citing Merriam-Webster’s Collegiate

Edition 1354 (11th ed. 2003) (referring to the fourth listed definition)).

Sierra Club also points to language in the NSR Manual that suggests
62 PIO PICO ENERGY CENTER

“‘source type’ is distinct from a particular source because it looks to

similar facilities with similar physical and chemical emission

characteristics and not to the specific qualities of the particular design

put forward by the applicant.” Id. (citing NSR Manual at B.18).

The Board agrees with Sierra Club’s general contention that,

under the language of the NSR Manual, “source type” refers to a

category or class, and not a specific design. Id. at 15. This does not,

however, mean that the categorymust be as broad as Sierra Club implies.

Moreover, the Board does not find that the Region construed “source

type” in this case as narrowly as Sierra Club contends it did.

The administrative record clearly indicates that the Region did

not consider all power plants to be the “source type” in its step 2

feasibility analysis. Instead, as described above, the Region defined the

relevant “source type” as a peaking and load-shaping facility, one that

could provide between 50 and 300 MW of power. See Fact Sheet &

AAQIR at 1, 3,10 n.4, 16-19; RTC at 28, 53; see also Region Resp. at 19

(stating that “the type of source under review is a peaking and loadshaping unit”).

The NSR Manual does not provide a definition of “source type”

in the context of the step 2 analysis. The NSR Manual, however, does

contain examples of BACT analyses suggesting that different operational

characteristics of power plants can potentially distinguish them and place

them into different “source type” categories for purposes of a BACT

analysis. See NSR Manual at B.57-B.75. In illustrating how to perform

a BACT analysis, the NSR Manual differentiates between three

categories or “types” of stationary gas turbine projects: a simple-cycle

gas turbine firing natural gas, a combined-cycle gas turbine firing natural

gas, and a combined-cycle gas turbine firing distillate oil. Id. at B.57.

While some of the technical points of these 1990 examples may be

outdated, this set of examples demonstrates that the “source type” under

consideration may include something less than all gas turbine facilities.

Id. Additionally, these three examples indicate that a permitting

authority may distinguish between types of electric generating plants and

group them as different “source types” – for example, peaking,
PIO PICO ENERGY CENTER 63

 While the statements in these cases were made in the context of step 1, see,

45

e.g., Prairie State, 13 E.A.D. at 25; Kendall, 11 E.A.D. at 51-52 & n.14, there is no

reason that these principles would not similarly apply to step 2 as well. The questions

being addressed in both steps go to the definition of “source.” 

intermediate, and base load facilities – when it determines that the

significantly different operating scenarios of each type require such a

distinction. The Region’s approach in this case, therefore, is generally

consistent with these examples. Notably, Sierra Club’s definition of

“source type” is seemingly so broad that it would not be consistent with

these examples. 

Not only is the Region’s analysis consistent with Agency

guidance, but it is also consonant with Board caselaw discussing plants

operating in different modes. The Board has noted that plants operating

in “peaking mode” typically remain idle much of the time, but can be

started up when power demand increases, i.e., at times of “peak”

demand, and, unlike base load plants, typically use simple-cycle rather

than combined-cycle units as well as smaller turbines. E.g., Russell City,

slip op. at 31 & n.16, 15 E.A.D. at ___; In re Kendall New Century Dev.,

11 E.A.D. 40, 50-52 (EAB 2003); In re RockGen Energy Ctr., 8 E.A.D.

536, 537-38 (EAB 1999); In re Commonwealth Chesapeake Corp.,

6 E.A.D. 764, 766 n.3 (EAB 1997). Because of these differences, the

Board has “recognized that it [is] appropriate for the permitting authority

to distinguish between electric generating stations designed to function

as ‘base load’ facilities and those designed to function as ‘peaking’

facilities, and that this distinction affects how the facility is designed and

the pollutant emissions control equipment that can be effectively used by

the facility.” In re Prairie State Generating Co., 13 E.A.D. 1, 25 45

(EAB 2006), aff’d sub nom. Sierra Club v. EPA, 499 F.3d 653 (7th Cir.

2007); see also In re Maui Elec. Co., 8 E.A.D. 1, 16-22 (EAB 1998)

(discussing key distinctions between three modes of operating

combustion turbine generators – simple cycle, combined cycle, and

cogeneration – and concluding that technology appropriate for one mode
64 PIO PICO ENERGY CENTER

 The Board has also noted that a change from a base load to a peaking facility 46

could be considered a redefinition of the proposed facility's design and thus could justify

the elimination of the option in step 1 of the BACT analysis. Prairie State, 13 E.A.D.

at 25 (citing Kendall, 11 E.A.D. at 51-52 & n.14). Here, the Region argues that even if

the Board agrees with Sierra Club concerning the Region’s BACT step 2 analysis (which

the Board does not), “the record in this case is clearly sufficient to justify elimination of

the combined-cycle gas turbines as ‘redefining the source’ under step 1 of the BACT

analysis.” Region Resp. at 20. Pio Pico also suggests that the Region could have

concluded that a combined-cycle gasturbine plant would be a redefinition of the source,

thereby justifying its elimination at step 1. Pio Pico Resp. at 11-14. While it may be true

that the Region could have done so, the Region did not explicitly conclude that

combined-cycle gas turbines would be a redefinition of the source, and the administrative

record does not contain any analysis reflecting such a determination. Consequently, the

Board does not consider this argument on appeal. 

may not be appropriate for another). Similarly, it is not unreasonable

46

for permitting authorities to distinguish between electric generating

stations designed to function as peaking/intermediate load facilities and

those designed to function as base load facilities or even intermediateonly load facilities.

Furthermore, in In re Cardinal FG Co., a case similar to this one

that dealt specifically with a step 2 technical feasibility analysis, the

Board found no clear error where the permit issuer had defined “source

type” to be a particular type of glass-producing facility that

manufactured high-quality flat glass using a certain process. 12 E.A.D.

153, 164-66 (EAB 2005). There, the permit issuer had eliminated oxyfuel from further consideration in the BACT analysis due to concerns

regarding its technical feasibility at the glass-producing facility in

question. Id. In particular, the permit issuer had concluded that the

technology was neither “demonstrated” nor “applicable” to that

particular type of glass-producing facility. Id. at 165-67. The permit

issuer acknowledged that oxy-fuel had been used in other types of glassproducing facilities, but not in one specific category: those high-quality

flat-glass-producing facilities that utilize the float process, which was the

type of facility the applicant proposed to construct. Id. at 164-65. The

permit issuer had explained the technical difficulties that had prevented

oxy-fuel firing from being used in this one category of glass-producing

facilities. Id. at 165. The permit issuer also had addressed and
PIO PICO ENERGY CENTER 65

distinguished those plants identified by commenters that allegedly

showed that oxy-fuel had been successfully installed and operated, i.e.,

“demonstrated.” Id. On appeal, the Board concluded that the petitioner

had not shown that the permit issuer’s “demonstration” and

applicability” determinations, which were based on a “source type”

definition narrower than “all glass-producing facilities,” were clearly

erroneous. Id. at 168; see also Knauf I, 8 E.A.D. at 141 (noting that the

permit issuer failed to perform a technical feasibility analysis on the

control technologies employed at various types of fiberglass

manufacturing facilities and indicating that there may be reasons to find

that certain technologies may be infeasible).

The fact that a step 2 technical feasibility analysis has two parts

is an important consideration in determining what the appropriate scope

for selecting “source type” should be. Because the analysis is two-fold,

if the permitting authority concludes that a control technology is not

“demonstrated,” the inquiry does not end there. Thus, even if “source

type” is defined on the narrower side of the spectrum, the permitting

authority will still need to consider whether that control technology is

“available” and “applicable.” Defining “source type” more narrowly

does not, therefore, allow applicants or permit issuers to pave an

“automatic BACT off-ramp” for a control technology, as argued by

Sierra Club. Sierra Club Pet. at 16 (quoting NMU, slip op. at 26-27,

14 E.A.D. at __). It merely places the control technology into the second

part of the step 2 analysis, where the applicant and permit issuer will

have to perform a detailed assessment of the technology’s availability

and applicability. 

Conversely, if “source type” is defined too broadly, a control

technology will automatically be shunted into steps 3 and 4, thereby

bypassing the detailed consideration of its technical feasibility that part 2

of step 2 would have required. Because step 4 considerations do not

typically include technical feasibility, a control technology that is not

truly feasible for a particular source could end up being inappropriately

selected as the top control option in step 5.
66 PIO PICO ENERGY CENTER

The present case demonstrates how the two-part step 2 analysis

works. Here, even though the Region concluded that combined-cycle gas

turbines were not a “demonstrated” control technology, the Region still

performed a detailed consideration of combined-cycle gas turbines in its

“applicability” determination. In its applicability analysis, the Region,

in exercising its technical judgment, determined that there would be

several significant operational problems with employing combined-cycle

gas turbines at the Facility. Summarizing the Region’s key findings

described above, the Region found this control technology to be

“inapplicable” because: (1) it would not produce enough power when

larger quantities are needed after a “cold start” (160 MW versus

300 MW in the same time), see Fact Sheet & AAQIR at 16; (2) it would

take much longer to produce full load power (300 MW) following a cold

start (3-1/2 hours versus 30 minutes), and the purpose of peaking plants

is to produce power relatively quickly, especially when they are

supporting renewable energy, see id. at 16-17; RTC at 27; and (3) it

could only produce sufficient power (300 MW) in an appropriate time

frame if a substantially larger facility (at least 400 MW in size) is built,

but at least 25 percent of a larger plant’s capacity would likely never be

used and such an operation would be significantly less efficient, see RTC

at 30. The Region also concluded that one of the proposed combinedcycle gas turbine units would not have a flexible enough operating range,

especially at the low end of the range (i.e., that unit can only operate

down to 165 MW as opposed to 50 MW). RTC at 53-54; see also Fact

Sheet & AAQIR at 16 (stating that the Facility needs to be “highly

flexible”). Importantly, all of these reasons – time to produce required

electricity, ability to produce the appropriate amount of electricity, size

of the turbines – are “operating problems related to specific

circumstances of the source” or problems with “the size of the unit,”

which are examples that the NSR Manual explicitly includes within those

“unresolvable technical difficult[ies] with applying the control” that

demonstrate “inapplicability” and thus technical infeasibility. NSR

Manual at B.19. The Region’s analysis under part 2 of step 2 is

therefore entirely consistent with the NSR Manual.

In light of these considerations, the Board concludes that Sierra

Club has not demonstrated that the Region’s approach was clearly
PIO PICO ENERGY CENTER 67

erroneous. Moreover, decisions as to what the appropriate “source type”

should be for a given sector is the kind of technical judgment to which

the Board typically defers. In light of this deference, Sierra Club has not

presented persuasive evidence that the Region clearly erred in exercising

its technical judgment by considering “source type” here as less than “all

gas-fired electric generating plants.” In addition, as noted above, in

cases where a permit issuer has evaluated and rejected a control

technology as the Region did here, “those favoring the option must show

that the evidence ‘for’ clearly outweighs the evidence ‘against’ its

application.” Cardinal, 12 E.A.D. at 167 (citations omitted). Petitioner

has not done so. While the Region provided a detailed explanation as to

why the technology should be rejected, Sierra Club has only provided

generalized statements supporting its use. See, e.g., Sierra Club Pet.

at 16. Sierra Club has failed to demonstrate that the evidence for

combined-cycle gas turbines clearly outweighs the evidence against its

application. Consequently, the Board denies review of this issue.

Although the Board does not agree with Sierra Club that the

Region defined “source type” too narrowly, Sierra Club’s fear that

applicants and permit issuers could so narrowly define the source type

they consider in step 2 as to make all other control technologies

infeasible is well taken. It was in part due to this concern that the Board

considered this issue on appeal. Upon review, however, the Board

concludes that defining “source type” somewhat narrowly is not fatal to

the general requirement of performing a broad overall BACT analysis

because of the construct of the NSR Manual’s step 2 analysis. Even if a

permit issuer defines “source type” on the narrow side in the first part of

the step 2 technical feasibility analysis, thereby eliminating a technology

that arguably is “demonstrated,” the permit issuer still will have to

reconsider such technology in the second part of the technical feasibility

analysis when it examines whether that technology is available (which

it is likely to be, as it was in this case) and applicable. This second part

of the step 2 test, especially the “applicability” analysis, will therefore

be able to “recapture” technologies that may fall out in the first part of

step 2 and that should be considered at least one step further in the

BACT analysis.
68 PIO PICO ENERGY CENTER

 The Region claims that the power purchase agreement (and RFO) are not 47

“part” of the administrative record. See, e.g., Region Suppl. Br. in Resp. to Board Order

at 7, 9. That claim is not correct. Under the permitting regulations, all documents the

permit issuer cites in the fact sheet are included in the administrative record. 40 C.F.R.

§ 124.9(b)(4); accord In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 516

(EAB 2006); see also In re Mayaguez Reg’l Sewage Treatment Plant, 4 E.A.D. 772, 776

n.7 (EAB 1993) (“The Report was cited on page 32 of the Region’s response to

comments * * * and therefore became part of the administrative record.”), aff’d sub nom.

P.R. Aqueduct & Sewer Auth. v. EPA, 35 F.3d 600 (1st Cir. 1994), cert. denied, 513 U.S.

1148 (1995). The Region cited both documents in its Fact Sheet, see Fact Sheet &

AAQIR at 16, and thus is required to include them in the record. Furthermore, the RFO

is in fact currently in the administrative record, as an attachment to a letter from Pio

Pico’s consultants to EPA addressing GHG BACT concerns. See Letter from Steve Hill,

Sierra Research, to Gerardo Rios, Chief, Air Permits Office, U.S. EPA Region 9, attach.

1 (Apr. 13, 2012) (A.R. I.56). 

In the future, the Board will continue to closely scrutinize step 2

analyses to ensure that applicants and permit issuers do not unduly

narrow the “source type” they consider in deciding whether a control

technology has been “demonstrated” or is “applicable.” The Board

expects a thorough analysis in the second part of the step 2 analysis in

those cases where the permitting authority defines “source type”

narrowly. The Board will not hesitate to remand in cases where the

permit issuer’s definition of source type is so narrow that it does not

fairly conduct the first part of a step 2 analysis, e.g., where the source

type is essentially a category of one, unless the permit issuer fully

explains the technical reasons, supported by the record, why the category

cannot be larger without making achievement of the project purpose

impossible.

5. The Region’s References to the Power Purchase Agreement

and RFO in Its BACT Analysis Do Not Necessitate a

Remand in Light of the Recent CPUC Decision

The Region referred to the RFO and the power purchase

agreement a number of times throughout the administrative record in

connection with its GHG BACT analysis. See, e.g., Fact Sheet & 47

AAQIR at 16; RTC at 27-28. Petitioners contend that, in light of the

CPUC decision – which essentially prohibits SDG&E from entering into
PIO PICO ENERGY CENTER 69

a long-term purchase agreement at this time – the multiple references to

those potentially inapplicable documents require a remand so that the

Region may reconsider its BACT analysis. More specifically,

Mr. Simpson, in his petition, claims that the Region erred by relying on

the power purchase agreement requirements in concluding that a simplecycle rather than a combined-cycle configuration was needed and that

this reliance is especially problematic in light of the CPUC decision.

Simpson Pet. at 7. Sierra Club, in its supplemental brief, similarly

asserts that, because the Region set its operating limits based on the

power purchase agreement and determined that combined-cycle gas

turbines were incompatible with those limits, “in the absence of those

foundational elements, the Region must reconsider its BACT analysis.”

Sierra Club Suppl. Br. in Resp. to Board Order at 5; see also id. (“[T]he

CPUC’s decision fundamentally alters the purpose of the facility.”).

Petitioners reiterated these arguments during the status conference. See,

e.g., Status Conf. Tr. at 41-43, 51-54, 64. 

The Board concludes that the Region did not clearly err or abuse

its discretion for several reasons. First, in response to the Board’s

questions concerning the ramifications of the CPUC decision on Pio

Pico’s plans, Pio Pico has averred that it still intends to build the Facility

as described in its application. Pio Pico’s Suppl. Br. in Resp. to Board

Order at 2 & Ex. 1, ¶7, at 2 (Decl. of Gary R. Chandler). Pio Pico has

also stated that it plans to produce power as described in its application

either to sell on the open market (thereby acting as a merchant plant) or

to sell to SDG&E using short-term power agreements instead of a longterm one. Id. at 2. Thus, there is no indication that the basic design or

the basic purpose of the Facility (providing up to 300 MW of peaking

and/or intermediate load-shaping power) has changed. The mere fact

that SDG&E may not enter into a long-term power purchase agreement

with Pio Pico to purchase power from the Facility does not per se change

the Facility’s basic design or its purpose. Moreover, the PSD regulations

require that the Facility be built in accordance with the permit
70 PIO PICO ENERGY CENTER

 Sierra Club also contends that it is not credible that Pio Pico will construct 48

the same type of plant now, Sierra Club Suppl. Br. in Resp. to Board Order at 1-2, and

that it is unclear what kind of plant will be constructed, id. at 3-4. The Board disagrees.

Pio Pico must construct a facility subject to the terms and conditions in the Permit.

40 C.F.R. § 52.21(r)(1). If Pio Pico desires to build a plant with a different set of PSD

permit terms and conditions, it will have to apply for and obtain approval of the change.

See id. Furthermore, insofar as Sierra Club is now questioning the maximum number of

hours of operation allowed by the permit, see, e.g., Sierra Club Suppl. Br. in Resp. to

Board Order at 3-4, such a challenge was not preserved for review. Sierra Club did not

raise this issue in its comments on the draft permit, nor did it raise this issue in its

petition. Sierra Club may not raise it for the first time in reply or supplemental briefs.

See Knauf I, 8 E.A.D. at 126 n.9 (new issues raised in reply briefs are equivalent to latefiled appeals and must be denied as untimely); see also Russell City, slip op. at 45 n.35

(explaining that issue may not be raised for the first time in a reply brief); Dominion,

12 E.A.D. at 595.

application (or the terms of the approval to construct). 40 C.F.R. 48

§ 52.21(r)(1). 

Petitioners argue that the “purpose” of the Facility is to meet

SDG&E’s RFO/PPTA. Petitioners, however, are framing the PSD

analysis incorrectly. For purposes of a PSD analysis, the question as to

the “purpose” and “design” of a facility goes to what type of source an

applicant is planning to build. Here, Pio Pico’s business “purpose” is to

build a highly flexible peaking/intermediate load-shaping power plant

that provides up to 300 MW to support renewable energy and to support

San Diego’s short-term and long-term energy needs. See, e.g., Revised

Application at 2.1 (“[The Facility] is designed to directly satisfy the San

Diego area demand for peaking and load-shaping generation, near and

long term.”). Both the Region, throughout the administrative record as

described above, and Pio Pico, in its application materials, made this

clear. See, e.g., Fact Sheet & AAQIR at 3, 4 n.10, 16, 18-19; RTC at 6,

23, 28; Revised Application at 2.1, 2.3, 2.55, 3.9. Although the reason

behind the company’s decision to build a 300 MW peaking/intermediate

load-shaping plant was the need San Diego described in its RFO/PPTA,

this factor does not convert the RFO/PPTA into the purpose of the plant

per se. Importantly, the fact that an applicant selects a type of source to

build based on what it believes current market needs are – or, in this

case, what the locality states its needs are – does not change the basic
PIO PICO ENERGY CENTER 71

 In the Fact Sheet, the Region noted that although collectively there are six 49

gases subject to regulation as GHG pollutants under the CAA (carbon dioxide, methane,

nitrous oxide, sulfur hexafluoride, hydrofluorocarbons, and perfluorocarbons), the GHG

BACT 2 emission limit in this permit is expressed as a CO limit because the GHG

em 2issions from the gas turbines are overwhelmingly in the form of CO . Fact Sheet &

AAQIR a 2t 21 n.15 (CO emissions caused by the combustion of natural gas represent

99.9 pe 2rcent of CO -equivalent emissions on a ton per year basis even after accounting

for the warming potential of methane and nitrous oxide emissions); see also 40 C.F.R.

§ 52.21(b)(49)(i); RTC at 11 n.4. For consistency, the Board refers to the BACT limit

2

for GHGs in this section as the CO BACT limit.

 Heat rate increases(and thus thermal efficiency decreases) as load decreases. 50

See Letter from Steve Hill, Sierra Research, to Gerardo Rios, Chief, Air Permits Office,

(continued...)

purpose and design of the proposed facility. The purpose and design

behind most power plants are likely informed by the perceived needs of

the market either because of market analyses, power purchase

agreements with a municipality or other government or private sector

entity, and/or corporate judgment.

6. Conclusion 

In sum, the Board concludes that neither Sierra Club nor

Mr. Simpson has demonstrated that the Region clearly erred in declining

to consider combined-cycle gas turbines past step 2 of the BACT

analysis. Although the Region defined the source type for purposes of

step 2 of its BACT analysis more narrowly than the entire class of all gas

turbines, Sierra Club has not demonstrated that this was clearly

erroneous. Petitioners have also failed to demonstrate that the recent

CPUC decision necessitates a remand of the GHG BACT analysis. All

other claims are procedurally barred. Accordingly, the Board denies

review of this issue.

F. Cha 2llenges to CO BACT Emission Limit

Sierra Club next challenges the Region’s BACT emission limit

2 for CO . In its petition, Sierra Club asserts that the Region’s decision 49

to select a BACT emission limit based on 50 percent load efficiency at 50
72 PIO PICO ENERGY CENTER

(...continued) 50

Region 9, U.S. EPA at 14 & fig. 5 (Jan. 5, 2012) (A.R. I.33) (explaining that turbines

operate less efficiently at lower loads); Letter from Steve Hill, Sierra Research, to

Gerardo Rios, Chief, Air Permits Office, U.S. EPA Region 9, at 1 (Aug. 22, 2012)

(A.R. VI.48) (same). Conversely, the higher the load, the more efficiently the turbines

will operate, resulting in fewer pollutant emissions. 

all times the turbines operate constitutes clear error because the Permit

contains 2 a less stringent CO BACT limit as compared to the draft

permit. Sierra Club also asserts that the Region clearly erred by

including safety factors, also referred to as compliance margins, in the

CO2 BACT limit that lack factual support in the administrative record.

The 2 Region counters that the CO BACT limit and corresponding safety

factors are fully explained and supported by the administrative record,

and thus, the Board should deny review of these issues. The question the

Board must answer then is whether the Region used its “considered

2

judgment” to select the Permit’s CO BACT emission limit and

corresponding safety factors and whether the Region’s explanation of its

decision is rational in light of all of the information in the record. See,

e.g., In re Shell Offshore, Inc. (“Shell Offshore 2012”), OCS Appeal

Nos. 11-05 through 11-07, slip op. at 8 (EAB Mar. 30, 2012), 15 E.A.D.

at ___ (citing cases); Russell City, slip op. at 58, 15 E.A.D. at ___.

The Board notes at the outset that Sierra Club’s challenges to the

Reg 2ion’s CO BACT limit and the accompanying safety factors are

inherently technical. As explained above in Part III, the Board accords

substantial deference to a permit issuer on fundamentally technical issues

as long as the determination reflects the permit issuer’s considered

judgment as documented in the record. See, e.g., Russell City, slip op.

at 58, 15 E.A.D. at ___. The Board addresses Sierra Club’s challenges

2

to both the CO BACT limit and the safety factors incorporated into that

limit in turn below.
PIO PICO ENERGY CENTER 73

gross

 The 9,196 Btu/kWh heat rate Sierra Club refers to is the initial heat rate 51

that appears in the proposed permit and the corresponding Fact Sheet, which is separate

2

from the ongoing CO emission limit intended to apply for the life of the Facility. See

Fact Sheet & AAQIR at 20 (“[CO2] BACT will include a heat rate limit that applies at

initial startup in addition to a separate emission limit that applies on an ongoing basis.”);

U.S. EPA Region 9, Proposed PSD Permit for PPEC (PSD Permit No. SD 11-01) at 7

(June 2012) (A.R. IV.1) (“Proposed Permit”) (specifying in Condition IX.D.4 that within

a certain period of time, “each [turbine] shall achieve an initial heat rate at full load that

does gross not exceed 9,196 Btuhhv/kWh ”).

 The heat rate at 50 percent load under International Organization for 52

Standardization (“ISO”) conditions is 10,576 Btu/kWh. See Letter from Steve Hill,

Sierra Research, to Gerardo Rios, Chief, Air Permits Office, U.S. EPA Region 9,

at 5 tbl.1B (Apr. 13, 2012), cited in RTC at 16. When multiplied by the safety factors the

Region included, see infra Part VIII.F.1.a, the rates are as follows:

10,576 Btu/kWh * .014 = 148 

10,576 Btu/kWh * .03 = 317

10,576 Btu/kWh * .03 = 317

10,576 Btu/kWh + 148 + 317 + 317 = 11,358 Btu/kWh. 

1. Sierra Club Has Not Demonstrated That the Region Failed

2

to Use Its Considered Judgment in Choosing a CO BACT

Emission Limit That Corresponds to the Facility’s Operation

at Fifty Percent Load 

S 2ierra Club argues that the Permit’s CO BACT emission limit

is based on the “worst-case operating conditions” and conflicts both with

the definition of BACT and EPA precedent. Sierra Club Pet. at 18-20.

In particular, Sierra Club contends that the “significant change” in heat

rate, from 9,196 British thermal units per kilowatt hour-gross

gross gross (“Btu/kWh ”) in the draft permit to 11,358 Btu/kWh in the Permit,

51

indicates that “the Region assumed when establishing the BACT limit

that [the Facility] would operate at all times at 50 percent load,” resulting

gross in the 11,358 Btu/kWh heat rate and a corresponding emission rate

52

of 1 2,328 pounds per megawatt hour (“lb/MWh”) for CO . Id. at 19.

Sierra Club 2 further asserts that the CO BACT emission limit in the

Permit ensures that the facility will only be subject to “BACT-level

emission limits,” during the relatively few operating hours when the
74 PIO PICO ENERGY CENTER

 Sierra Club also states that because the Facility will only operate at 50 53

percent load for a portion of the 720-hour rolling averaging period (equivalent to thirty

days), even when the plant is operating at 50 percent load, it can emit more than 1,328

2

lb/hr of CO because “those periods will be averaged out with the other hours of higher

operating rates, when emissions are necessarily lower.” Sierra Club Pet. at 20. 

 The heat rate at 100 percent load under ISO conditions is 8,738 Btu/kWh. 54

See Letter from Steve Hill, Sierra Research, to Gerardo Rios, Chief, Air Permits Office,

U.S. EPA Region 9, at 5 tbl.1B (Apr. 13, 2012) (A.R. I.56), cited in RTC at 14. When

multiplied by the safety factors, see infra Part VIII.F.1.a, the corresponding rates are:

8,738 Btu/kWh * .014 = 122.33

8,738 Btu/kWh * 1.03 = 262.14

8,738 Btu/kWh * 1.03 = 262.14

8,738 Btu/kWh + 122.33 + 262.14 + 262.14 = 9,385 Btu/kWh

(rounded to the nearest whole number). 

facility is at 50 percent load. Id. at 20. Sierra Club asserts that when 53

the Facility is operating at full load the heat rate is 9,385 Btu/kwh,54

which translates to an 18 percent lower emission rate of 1,097 lb/MWh

2

for CO . Sierra Club contendsthat even though the Facility will operate

at rates above 50 percent load during “many, if not most” of its operating

hours, 2 during which lower CO emission rates are achievable, “the final

permit establishes a BACT-level emission rate for only those hours when

the unit operates at a 50 percent load.” Id.

The Region counters that it provided a clear, detailed

explanation for se 2tting the Permit’s CO BACT limit for the life of the

facility to correspond to emissions at 50 percent load. Region Resp.

at 23. The Region notes that it must ensure that BACT is achievable at

all times, and the Facility is designed to operate anywhere between

100 percent to 50 percent load during normal operation. Id. The Region

further explains that since the Facility will not use add-on controls to

achieve CO2 BACT, and will instead achieve BACT using good

combustion and maintenance practices, this situation warrants a BACT

emission limit that can be met in a variety of operating conditions

consistent with the project’s design. Id. at 23-24.
PIO PICO ENERGY CENTER 75

 One metric ton is equal to 1000 kilograms. The U.S. equivalent, also called 55

a short ton, equals 2000 pounds, or 0.907 metric tons (approximately 907 kilograms).

Merriam Webster’s Collegiate Dictionary 733 (citing metric system measures), 1341

(continued...)

a. Background

Prior to issuing the proposed PSD permit, the Region performed

a five- 2step top-down BACT analysis for CO emissions, considering

potentially available control technologies at step 1 that included

reciprocating internal combustion engines, combined-cycle gas turbines,

energy-efficient simple-cycle gas turbines, and carbon capture and

sequestration. See Fact Sheet & AAQIR at 15-16; see also supra

Part VII (providing detailed description of top-down BACT analysis).

The Region eliminated both combined-cycle turbines and carbon capture

and sequestration as technically infeasible at step 2. Fact Sheet &

AAQIR at 16-19. Although reciprocating internal combustion engines

have a lower heat rate than energy-efficient simple-cycle gas turbines,

and thus were the top-ranked control technology at step 3, the Region

ultimately eliminated reciprocating internal combustion engines at step 4

due to collateral environmental impacts. Id. at 19-20 (noting that

reciprocating internal combustion engines would emit roughly 70 percent

more oxides of n xitrogen (“NO ”) at full load than simple-cycle gas

turbines, which would have a deleterious impact on San Diego’s

nonattainment status for the 8-hour ozone NAAQS). 

Thus, at step 5 of the BACT analysis, the Region selected

thermally efficient simple-cycle combustion turbines combined with

good combustion and maintenance practices to maintain optimum

ef 2ficiency as BACT for CO . In step 5, the Region noted that GE

LMS100 gas turbines proposed by the applicant have a maximum

efficiency of 44 percent under ISO conditions, which is at the high end

of the efficiency range for simple-cycle gas turbines in that size category.

Id. at 20 & n.15 (citing product documentation for various turbines and

highlighting the GE LMS100 product information, which states that

when running at full capacity, the LMS100 avoids over 34,000 metric

2

tons of CO emissions over the course of a peaking season compared 55
76 PIO PICO ENERGY CENTER

(...continued) 55

(citing U.S. weights and measures) (10th ed. 1999). The alternate spelling of “tonne,”

which the Region refers to in the Fact Sheet, is used to denote the metric measure,

whereas “ton” connotes the U.S. measure. See U.S. Government Printing Office, Style

Manual 237, 257 (2008) (distinguishing the spelling of tonne and ton). 

 Pio Pico’s comments also noted that the Region never specified in the Fact

56

Sheet the initial operating efficiency, or “heat rate,” that formed the basis for the proposed

ongoing 2 2 net CO emission limit of 1,181 lbs CO /MWh . See Pio Pico July 24 Cmt. at 3;

see also Fact Sheet & AAQIR at 20-21 (referencing emissions data provided in the permit

application and turbine performance data but never specifying the heat rate limit to which

2

the six percent compliance margin would be added in order to calculate the proposed CO

BACT emission limit). Nonetheless, whatever the heat rate limit is that would result in

a p 2 2 net grossroposed ongoing CO emission limit of 1,181 lbs CO /MWh , i.e., 9,196 Btu/kWh

o grossr something else, it would still be lower than the heat rate of 11,358 Btu/kWh

contained 2in the Permit. Since Petitioners request review ofthe final CO emission limit,

which is based on a different and higher heat rate, the absence of the heat rate information

2

that formed the basis for the ongoing CO emission limit in the proposed permit does not

affect any of the challenges Petitioners raise in these appeals.

to a typical simple-cycle system). The Region also explained its decision

2

to use safety factors to calculate the CO BACT emission limit. Based

on the emissions data the applicant provided as well as the safety factors,

see infra Part VIII.F.2.a, .b, the Region proposed an emission limit of

1,181 2 2 lbs CO per megawatt hour (“lbs CO /MWh”) net output with a

rolling 8,760 operating hour averaging period. See Fact Sheet & AAQIR

at 21.

During the public comment period, Pio Pico submitted

comments s 2tating that the Region’s proposed CO BACT limit resulted

in emission restrictions that the Facility could not meet, in part because

2

the proposed CO emission limit failed to take into account turbine

operation at partial load, a necessary operating scenario for a peaking

facility. See Letter from Steve Hill, Sierra Research, to Gerardo Rios, 56

Chief, Air Permits Office, U.S. EPA Region 9, at 3 (July 24, 2012)

(A.R. VI.10) (“Pio Pico July 24 Cmt.”); RTC at 7-8, 14. In its

commen 2ts, Pio Pico proposed an alternative CO BACT emission limit

based on an estimated heat rate calculation at 75 percent load, essentially

averaging the heat rates for 50 and 100 percent loads. RTC at 14-15

2

(proposing permit language that would limit CO emissions when the
PIO PICO ENERGY CENTER 77

Facility is operating at or above 75 percent load). Although the Region

ag 2reed with Pio Pico that the initial proposed CO BACT emission limit

failed to account for Facility operations at partial loads and thus agreed

2

that the CO BACT limit should be revised, the Region rejected Pio

Pico’s propo 2sal to apply the CO BACT emission limit only to loads at

or above 75 percent. Id. at 15-16. The Region highlighted the lack of a

technical justification for why the limit should be based on heat rate at

75 2 percent load and the suggestion that the CO BACT limit should only

apply to loads at or above 75 percent as reasons for rejecting Pio Pico’s

proposal. Id. at 16.

2

In setting the CO BACT emission limit for the Permit, the

Region explained its reasoning as follows:

EPA must ensure BACT is achieved at all times. The

permit record is clear that each turbine is designed to

operate from 100% down to 50% load during normal

operation. As such, we must set a limit that is

achievable at all times, including 50 to 75% load.

Neither the Proposed Permit limit nor the limit

suggested by [Pio Pico] would achieve this requirement.

* * * * 

As discussed in the Fact Sheet (see pp. 20), BACT for

GHGs for each turbine has been determined to be

efficient equipment design and does not include add-on

control equipment. As a result, BACT is achieved in

the same manner at 50% load as it is at 75% and 100%

load (and any other load level), even though the actual

GHG emissionsresulting from the application of BACT

may vary at different loads. Our determination must

account for the fact that the turbines can operate at a

number of different load levels within one period of

operation and within the averaging period used to

determine compliance. Therefore, in order to ensure

that the emission limit resulting from application of
78 PIO PICO ENERGY CENTER

BACT for GHGs is set at a level that can be achieved

from the turbines at all times, the final BACT limit has

been set at a level achievable during the “worst-case” of

normal operating conditions – 50% load. This will give

the facility the ability to operate within its BACT

emission limit and within its designed operating range

at all times.

Id. (emphasis added). With this background in mind, the Board now

2

turns to Sierra Club’s substantive challenges to the Permit’s CO BACT

limit.

b. Analysis

Contrary to Sierra Club’s assertions, the Region’s decision to set

2

the CO BACT emission limit to correspond with a load that has a

higher, less efficient heat rate is consistent with the definition of BACT

and EPA precedent. The Board has an established history of deferring

to a permit issuer’s well-documented decision to set a BACT limit that

is achievable for a given facility under all operating scenarios, and has

previously stated that “permit writers retain discretion to set BACT

levels that ‘do not necessarily reflect the highest possible control

efficiencies but, rather, will allow permittees to achieve compliance on

a consistent basis.’” In re Newmont Nev. Energy Inv., LLC, 12 E.A.D.

429, 442 (EAB 2005) (quoting Steel Dynamics II, 9 E.A.D. at 188

(EAB 2000)); accord Russell City, slip op. at 78, 15 E.A.D. at ___; In re

Prairie State Generating Co., 13 E.A.D. 1, 54 (EAB 2006), aff’d sub

nom. Sierra Club v. EPA, 499 F.3d 653 (7th Cir. 2007); In re Masonite

Corp., 5 E.A.D. 551, 560-61 (EAB 1994). The Board further explained

in Newmont:

In essence, Agency guidance and our prior

decisions recognize a distinction between, on the one

hand, measured “emissions rates,” which are necessarily

data obtained from a particular facility at a specific

time, and on the other hand, the “emissions limitation”

determined to be BACT and set forth in the permit,
PIO PICO ENERGY CENTER 79

 The Region’s reasoning for choosing a longer-term averaging period is 57

supported by EPA guidance pertaining to PSD permitting for GHGs. See Air Quality

Policy Div., Office of Air Quality Planning & Standards, U.S. EPA, PSD and Title V

Permitting Guidance for Greenhouse Gases 46 (Mar. 2011). The guidance states that

“since the environmental concern with GHGs is with their cumulative impact in the

environment, metrics should focus on longer-term averages (e.g., 30- or 365-day rolling

(continued...)

which the facility is required to continuously meet

throughout the facility’s life. Stated simply, if there is

uncontrollable fluctuation or variability in the measured

emission rate, then the lowest measured emission rate

will necessarily be more stringent than the “emissions

limitation” that is “achievable” for that pollution control

method over the life of the facility. 

12 E.A.D. at 442, quoted in Russell City, slip op. at 78-79, 15 E.A.D.

at ___; accord Prairie State, 13 E.A.D. at 54-55; In re Genesee Power

Station LP, 4 E.A.D. 832, 858, 862 (EAB 1993) (“It is customary to

establish emissions limitations based on realistic operating parameters,

rather than on results that are only occasionally achievable.” (citing In re

Pennsauken Cty., N.J., Res. Recovery Facility, 2 E.A.D. 768, 769-70

(Adm’r Apr. 20, 1989))). 

When juxtaposed with longstanding Board precedent that affords

permit issuers discretion to set BACT emission limits that are not the

most stringent achievable emission limits, Sierra Club’s challenge to the

Reg 2ion’s decision to set the CO BACT emission limit to correspond

with emission rates at 50 percent load must fail. As an initial matter,

Sierra Club fails to explain why the Region’s explanation for its choice

of the BACT emission limit falls short. Although Sierra Club cites the

response to comments document in its petition, it fails to address the

Region’s stated explanation for choosing the BACT emission limit to

correspond with heat rates at 50 percent load. Sierra Club asserts that

“rather than establishing a limit that accounts for the fact that heat rates,

and therefore emission rates, change to correspond with load changes,

the Region took the drastic step of establishing a BACT limit that will

apply on a long[-]term (30 days or greater) averaging basis based on the 57
80 PIO PICO ENERGY CENTER

(...continued) 57

average) rather than short-term averages (e.g., 3- or 24-hr rolling average).” Id. 

 Sierra Club also avers that the Region “assumed when establishing the BACT 58

limit that the [Facility] would operate at all times at 50% load,” and continued that,

“nowhere in the record is there a basis to assume continuous – i.e., all 720 operating

hours in each 720-hour rolling average – operation at 50% load.” Sierra Club Pet. at 19.

Contrary to Sierra Club’s assertion, the record is clear that the Region understood that the

Facility would operate at various loads between 50 and 100 percent. See RTC at 16

(“The permit record is clear that each turbine is designed to operate from 100% down to

50% load during normal operation. As such, we must set a limit that is achievable at all

times, including 50 to 75% load.”); Fact Sheet & AAQIR at 16 (noting that Pio Pico must

be able to provide highly flexible units that can provide regulation during morning and

evening ramps because output from renewable sources varies); Revised Application at 2.1

(“The LMS100 is designed for cyclic applications with 10-minute starts that provide

flexible power generation for peaking and intermediate solutions vital to support variable

demand and variable renewable energy sources * * * .”).

highest heat rate and emission rate.” Sierra Club Pet. at 19. However,

58

Sierra Club does not confront the Region’s explanation in the response

to comments document that it considered setting alternative BACT limits

to cover different load ranges. See RTC at 15 (agreeing with the

commenter that “it is not possible to predict the extent of part load

operation during every year for the life of the facility”), 16. The Region

explained that upon “further examination of the load ranges, turbine

efficiency, and operating parameters, we find no justification for setting

multiple limits based on an arbitrary load level.” Id. at 16; see also

Region Resp. at 24 (noting that to establish BACT emission limits based

on the achievable emission rate at the various operating rates at which

the plant proposes to operate would be “impractical if not altogether

impossible since the plant may operate at 50% load, 100% load, or any

of the countless points in between”). As explained in Part III.B, the

Board has frequently stated that a petitioner must substantively confront

the permit issuer’s response and explain why, in light of the permit

issuer’s stated rationale, the permit is clearly erroneous or otherwise

warrants review. In this instance, Sierra Club cannot prevail when it has

not addressed the Region’s explanation contained in the response to

comments document. 
PIO PICO ENERGY CENTER 81

Sierra Club’s use of the term “BACT-level emission limits”

twice in its petition appears to reference the most stringent emission limit

2

the Region could have chosen for CO BACT, namely to correspond to

the heat rate at 100 percent load. Sierra Club Pet. at 20 (arguing that the

Permit limit “will never ensure that the plant is required to emit at

BACT-level emission limits,” and further claiming that the Region’s

decision 2 to establish the CO BACT emission limit based on worst-case

operating conditions “ensures that during most periods the source is not

subject to BACT-level emission limits”). Sierra Club again fails to

address the Region’s explanation set forth in the response to comments

document. See RTC at 16 (“BACT is achieved in the same manner at

50% load as it is at 75% and 100% load (and any other load level), even

though the actual GHG emissions resulting from application of BACT

may vary at different loads.”). Sierra Club’s assertions regarding the

“BACT-level emission limit” do not account for Pio Pico’s operation as

a peaking facility, which anticipates operation at various loads as part of

the facility’s inherent design and purpose. In addition, any assumption

that a “BACT-level emission limit” only occurs at 100 percent load

ignores the Board’s extensive prior precedent set forth at the beginning

of this section, which states that a BACT emission limit need not be the

most stringent emission limit. E.g., Newmont, 12 E.A.D. at 441-42,

quoted in Russell City, slip op. at 78-79, 15 E.A.D. at ___. As the Board

has previously acknowledged, where the technology’s efficiency at

controlling emissions is known to fluctuate, “setting the emissions

limitation to reflect the highest control efficiency would make violations

of the permit unavoidable.” Masonite, 5 E.A.D. at 560, quoted in

Newmont, 12 E.A.D. at 442. 

Sierra Club’s petition also contains a calculation of the emission

limit and corresponding heat rate at 100 percent load, which Sierra Club

avers would translate to an emission rate 18 percent lower than when the

emission limit and corresponding heat rate is calculated at 50 percent

load. Sierra Club Pet. at 20. Sierra Club states that although the Facility

will operate at rates above 50 percent load during “many, if not most” of

2

its operating hours, which will result in lower achievable CO emission

rates due to more efficient heat rates that occur at higher loads, “the final

permit establishes a BACT-level emission rate for only those hours when
82 PIO PICO ENERGY CENTER

2

the unit operates at 50% load.” Id. Although the Permit’s CO BACT

emission limit is not the most stringent emission limit available, as

explained above, it is within a permit issuer’s discretion to set a limit

somewhat lower than optimal efficiency to ensure continued compliance.

E.g., Masonite, 5 E.A.D. at 560. Furthermore, similar to the permit

issued in Masonite, the Permit establishes good combustion and

maintenance practices as part of the BACT limit. Permit at 5 (“The

Permittee shall also perform any necessary operations to minimize

emissions so that emissions are at or below the emission limits specified

in this permit.”), 8 (“The Permittee shall prepare and follow a

Maintenance Plan for each [combustion turbine-generator]. The

Maintenance Plan shall * * * provide, to the extent practicable, for the

maintenance and operation of the turbine in a manner consistent with

good air pollution control practice for minimizing emissions.”). The

Board notes, as it did in Masonite, that if the equipment is capable of

achieving a higher control efficiency, enhanced efficiency will be

achieved regardless of whether the emission limit in the Permit

contemplates such efficiency. See Masonite, 5 E.A.D. at 562; see also

Letter from Steve Hill, Sierra Research, to Gerardo Rios, Chief, Air

Permits Office, Region 9, U.S. EPA, at 14 (Jan. 5, 2012) (A.R. I.33)

[hereinafter January 2012 Letter] (“It is important to note that while the

LMS100 configuration provides the flexibility to operate across the full

range of loads between approximately 50 MW and 300 MW, it will most

likely be dispatched to operate at the more efficient loads of 100 MW,

200 MW, or 300 MW.”).

Sierra Club has not met the particularly high threshold required

to demonstrate that review of the Region’s fundamentally technical

deci 2sion to establish the CO BACT emission limit to correspond to

50 percent load efficiency is warranted. See Russell City, slip. op. at 15,

15 E.A.D. at ___; In re Peabody W. Coal Co., 12 E.A.D. 22, 33-34

(EAB 2005). The Board now turns to the Region’s decision to include

2

safety factors in the Permit’s CO BACT emission limit.
PIO PICO ENERGY CENTER 83

2. Sierra Club Has Not Demonstrated That the Region Failed

toUse Its Considered Judgment When It Incorporated Safety

Factors 2, or Compliance Margins, Into the CO BACT

Emission Limit

Sierra Club next challenges the Region’s decision to incorporate

three safety factors, totaling a 7.4 percent compliance margin, into the

CO2 BACT emission limit, alleging that the record lacks the factual basis

to support the Region’s decision to include them. Sierra Club Pet. at 21-

22. The Region counters that not only was the need to include safety

2

factors in the CO BACT emission limit explained in the Fact Sheet and

response to comments document, but also that inclusion of the safety

factors was a reasonable exercise of the Region’s discretion to ensure

2

that the CO BACT emission limit can be met over the lifetime of the

Facility. Region Resp. at 24-26. Prior to addressing Sierra Club’s

al 2legations, the Board examines the Region’s CO BACT analysis and

corresponding information in the administrative record regarding the

Region’s decision to include safety factors.

a. Background

As the Board has explained in earlier decisions, “a ‘safety factor’

is intended to allow the permitting authority flexibility in setting the

permit limits where there is some degree of uncertainty regarding the

maximum degree of emissions reduction that is achievable.” Prairie

State, 13 E.A.D. at 55, quoted in Russell City, slip op. at 75, 15 E.A.D.

at ___. 

The Region first discussed safety factors in the step 5

explanation of its 2 CO BACT analysis contained in the Fact Sheet that

it issued concurrently with the proposed draft permit in June 2012. See

Fact Sheet & AAQIR at 20-21. As stated in Part VIII.F.1.a, at step 5 of

its BACT analysis the Region selected thermally efficient simple-cycle

combustion turbines combined with good combustion and maintenance

practices as the 2 control technique to limit the Facility’s CO emissions.

After explain 2ing that the BACT emission limit for CO would include a

heat rate limit that applies at initial startup in addition to a separate,
84 PIO PICO ENERGY CENTER

 Mr. Sarvey’s comment atfirst appears to address the proposed initial heat rate 59

limit, which the Region explained in the Fact Sheet contained a 3 percent safety factor

to account for variations in manufacturing, assembly, construction, and performance of

the new turbines. Fact Sheet & AAQIR at 20. Yet his comment also referenced the

6 pe 2rcent safety factor that the Region applied to the ongoing CO BACT emission limit,

rather than the proposed initial heat rate limit. See id. at 20-21.

ongoing emission limit (the one Sierra Club challenges) that applies for

the life of the facility, the Region stated:

Both the initial heat rate limit and the ongoing emission limit

must account for a number of factors including various

tolerances in the manufacturing and construction of the

equipment as well as actual ambient operating conditions.

* * * * 

Where the long-term emission limit is concerned, EPA

is * * * account[ing] for unrecoverable losses in

efficiency the plant will experience over its entire

lifetime as well as seasonal variation in site-specific

factors that affect turbine performance such as

temperature and humidity. In this instance, we believe

a margin of 6% is appropriate. 

Fact Sheet & AAQIR at 20-21. Using the 6 percent margin of

compliance along with emissions data provided in the permit application,

2 net the Region proposed the 1,181 lbs CO /MWh output emission limit.

See U.S. Proposed Permit at 6; see also Fact Sheet & AAQIR at 21.

During the public comment period, another commenter,

Mr. Sarvey, contested the Region’s inclusion of a 6 percent compliance

marg hhv gross in. See RTC at 52-53 (referencing the 9,196 Btu /kWh initial

heat rate limit included in the proposed permit and Fact Sheet “as BACT

for GHG for the [Facility],” and continuing that “this represents a 6%

margin over the guaranteed heat rate” for the turbines chosen). In its

59

response, the Region elaborated on its decision to use a compliance
PIO PICO ENERGY CENTER 85

margin based on the likelihood that emissions may vary from the

manufacturer’s stated heat rate:

It is especially important to note that the manufacturer’s

stated heat rate is at ISO conditions, which are standard

reference conditions for temperature and pressure. As

discussed in our Fact Sheet, turbine efficiency is highly

dependent upon actual ambient operating conditions,

which are not necessarily the same as ISO reference

conditions. It is precisely for this reason that it is

necessary to adjust the heat rate limit in our permit to

account for the actual operating conditions at the plant

location.

Id. at 53. 

The Region also elaborated on its decision to include safety

2

factors in the CO BACT emission limit while responding to the permit

app 2licant’s comment that the Facility would be unable to meet the CO

emission limit proposed in the draft permit. See id. at 14-17; see also Pio

Pico July 24 Cmt. at 3. In its response to Pio Pico, the Region explained

in more detail the calculation of the revised heat rate that would lead to

a pounds 2 2 of CO per megawatt hour (lbs CO /MWh) emission limit and

2

the reasons for including safety factors in the CO BACT emission limit:

Table 1B of the applicant’s April 13, 2012 letter

indicates that the heat rate at 50% load under ISO

conditions is 10,576 BTU/kWh (HHV, gross). As

stated in the comment and in our Fact Sheet, turbine

performance varies with ambient conditions, and we

agree with the commenter that a 1.4% adjustment is

appropriate. This results in an adjusted heat rate of

10,724 BTUHHV gross /kWh . We further agree with the

commenter that it is necessary to adjust the heat rate for

variability in the new unit and degradation in

performance over time. We have further adjusted the

heat rate by an additional 3% for each of these factors.
86 PIO PICO ENERGY CENTER

As noted by Sierra Research elsewhere in its comments,

there are only a limited number of LMS100

installations, which makes it difficult to predict the

magnitude of all of these effects on turbine

performance. We applied similar adjustments when

initially proposing the permit (see Fact Sheet at pp. 20-

21) and we believe their continued use is appropriate

given the uncertainty involved in establishing an

efficiency-based limit for this type of source, resulting

HHV gross in a final heat rate of 11,358 BTU /kWh . 

RTC at 16.

b. Analysis

To determine whether the use of a safety factor is appropriate,

the Board’s inquiry must be case- and fact-specific. Prairie State,

13 E.A.D. at 55 (explaining that the “appropriate application of a safety

factor in setting an emission limit is inherently fact-specific and unique

to the particular circumstances of the selected technology, the context in

which it will be applied, and available data regarding achievable

emissions limits”), quoted in Russell City, slip op. at 80, 15 E.A.D.

at ___; accord In re Miss. Lime Co., PSD Appeal No. 11-01, slip. op.

at 27 (EAB Aug. 9, 2011), 15 E.A.D. at ___. In general, safety factors

allow the permit issuer to account for variability and fluctuations in

performance of the emission control technology, lack of long-term data

for the control technology, and uncertainty regarding the degree to which

the control technology will be effective when setting a BACT emission

limit. See, e.g., Newmont, 12 E.A.D. at 442; Russell City, slip op. at 78,

84, 15 E.A.D. at ___; accord Prairie State, 13 E.A.D. at 55.

Contrary to Sierra Club’s contention, the safety factors the

Region cho 2se to incorporate in the CO BACT emission limit have

adequate factual support in the record. The Region stated in its response

to comments document that it had included, based on comments it

received, a 1.4% safety factor to account for the variability in turbine

performance due to changes in ambient conditions, a 3% safety factor for
PIO PICO ENERGY CENTER 87

 As the Board noted in Prairie State, “[v]ariability in the observed 60

performance of a control technology is an appropriate circumstance for the permitting

authority to use a safety factor in setting the permit’s BACT limit.” 13 E.A.D. at 75-76;

accord In re Masonite Corp., 5 E.A.D. 551, 560-61 (EAB 1994). 

variability in the new unit, and a 3% safety factor for degradation in

performance over time, for a total of 7.4%. RTC at 16. As set forth

above in Part VIII.F.2.a, at an early stage of the permitting process the

Reg 2ion explained that its chosen control technology for CO emissions

nece 2ssitated the use ofsafety factors in the CO BACT emission limit to

ensure the Facility’s compliance over its life span, a nominal thirty years.

See RTC at 7 (citing estimated life of Facility). The Region noted in the

Fact Sheet that unrecoverable losses in efficiency over the life of the

plant, variability in the turbines themselves, and seasonal variation in

site-specific factors such as temperature and humidity would affect the

Facility 2’s ability to meet the CO emission limit, and further explained

in the response to comments that the limited number of similar LMS100

installations, and corresponding performance data for such installations,

made it difficult to predict the magnitude of all of these effects on

turbine performance. Fact Sheet & AAQIR at 20-21; RTC at 16. 

The Region’s analysis of the need for safety factors is

par 2ticularly reasonable here, where the control technique for the CO

BACT emission limit is good combustion and maintenance practices as

opposed to add-on technology, as the effectiveness of this control

technique could likely vary across sources. See Russell City, slip op.

60

at 84, 15 E.A.D. at ___ (upholding the permit issuer’s decision to use a

compliance margin 2 in the BACT emission limit for NO emissions

during startup and shutdown of a power plant and noting that the chosen

control technique of “best work practices” is “a control technique the

Board expects would more widely vary across sources”). The Region

adequately explained the reasons why the safety factors included in the

CO2 emission limit are necessary and provided adequate support for each

one g 2iven the need to meet the CO emission limit over the lifetime of

the Facility and in light of the limited data currently available to

demonstrate the BACT limit can be met over time. As such, this case is

distinguishable fromthose the Board has remanded for failure to provide
88 PIO PICO ENERGY CENTER

 Sierra Club’s reply brief challenges the Region’s citation, for the first time 61

in the Region’s response brief, to Table 3.5-2, which is located on page 3.18 of the

Revised Application. Sierra Club Reply Br. at 4-5; see supra Part VI. The Region

apparently included Table 3.5-2 in its response brief to illustrate, albeit without

articulating it in words, the source of the 1.4 percent safety factor the Region included in

2

the CO BACT limit. The difference between the heat rate at peak operating conditions

(7,964 Btu/kWh) and the heat rate during winter conditions (7,856 Btu/kWh) totals

108 Btu/kWh, which is equivalent to a 1.4 percent difference in expected emissions based

on ambient conditions such as temperature and humidity. 

Notwithstanding the Region’s citation to Table 3.5-2 in its response brief, and

the Board’s acceptance of Sierra Club’s reply brief on this issue, the Board’s analysis of

Sierra Club’s petition for review and the arguments therein is unchanged by the

arguments in Sierra Club’s reply brief. In particular, Sierra Club’s reply brief appears to

challenge the use of Table 3.5-2 to explain the 1.4 percent safety factor included for

variation in ambient conditions. However, the challenge to this document is late, and as

the Board hasstated many times before, issues raised for the first time in a reply brief are

deemed untimely filed petitions for review. See, e.g., In re Dominion Energy Brayton

Point, LLC, 12 E.A.D. 490, 595 (EAB 2006) (declining to consider an issue that could

have been raised in a timely petition for review but was instead raised in a subsequent

response brief); Knauf I, 8 E.A.D. at 126 n.9 (“New issues raised for the first time at the

reply stage of the[] proceedings are equivalent to late filed appeals and must be denied

on the basis of timeliness.”). The remainder of Sierra Club’s reply brief that addresses

(continued...)

an adequate justification for safety factors in a BACT emission limit.

See, e.g., In re Vulcan Constr. Materials, LP, PSD Appeal No. 10-11,

slip op. at 36 (EAB Mar. 2, 2011), 15 E.A.D. ___ (remanding because

permit issuer failed to discuss the need for compliance margins in its

BACT analyses or otherwise provide a rationale as to why compliance

margins were appropriate); Miss. Lime, slip op. at 30-33, 15 E.A.D.

at ___ (same). 

To demonstrate that review of an issue is warranted, a petitioner

must substantively confront the permit issuer’s response and explain

why, in light of the permit issuer’s stated rationale, the permit is clearly

erroneous or otherwise warrants review. See supra Part III. Nowhere in

its petition does Sierra Club address the Region’s explanation in the Fact

Sheet or the response to comments document of its decision to include

2

safety factors in the CO BACT emission limit, nor does Sierra Club

refer to any of the Board’s prior precedent regarding safety factors. As 61
PIO PICO ENERGY CENTER 89

(...continued) 61

safety factors expounds upon arguments already presented in the petition for review, and

thus the Board does not consider them in its analysis of this issue. 

 The three facilities the Region evaluated are: Orange Grove; El Cajon 62

Energy; and Canyon Power. Fact Sheet & AAQIR at 14 tbl.7-5. 

a result, Sierra Club’s challenge to the Region’s incorporation of safety

2

factors into the CO BACT emission limit falls well short of the high

threshold petitioners must meet to demonstrate that review of a permit

issuer’s technical determination is warranted. See, e.g., Prairie State,

13 E.A.D. at 72; Newmont, 12 E.A.D. 458-59. 

The Reg 2ion’s CO BACT analysis and the corresponding

emission limit the Region established are reasonable in light of all of the

information in the record. Thus, review of Sierra Club’s challenges to

bo 2th the stringency of the CO BACT emission limit and the Region’s

decision 2 to incorporate safety factors into the CO limit is denied.

G. The Record Does Not Reflect the Permit Issuer’s Considered

Judgment in Selecting the BACT Limit for Particulate Matter

(“PM”)

1. Overview of Permit Condition 

PM is one of the pollutants the Permit regulates. After

identifying available control technologies for PM, their technical

feasibility and cost effectiveness, the Region identified the use of low

sulfur natural gas and good combustion practices as the top and preferred

control option. Fact Sheet & AAQIR at 13-15. To determine the

appropriate emission limit achievable by this control option, the Region

evaluated performance test data from “similar simple cycle plants”

located in southern California. Id. at 14. Specifically, the Region

evaluated data from tests conducted in 2010 and 2011 on GE LMS 6000

turbines from three different facilities. The performance test data from 62

these facilities showed PM emissions ranging between 0.0008 lb/MMBtu

and 0.0049 lb/MMBtu. Id. Based on its top-down BACT analysis, the
90 PIO PICO ENERGY CENTER

Region proposed as BACT in the draft permit “the use of low sulfur

pipeline quality natural gas, good combustion practices, and a PM, PM2.5,

and PM10 [emission] limit of 0.0065 lb/MMBtu on a 9-hr average” as

BACT. Proposed Permit at 6 (special cond. IX.B.1). The Region

explained that the emission limit “represents the expected PM emissions

based on the engineering design of the specific model (GE LMS 100) of

natural-gas fired turbine.” Fact Sheet & AAQIR at 14. The Region also

proposed that the sulfur content of the natural gas not be greater than

0.25 grains per 100 dry standard cubic feet (“dscf”) on a twelve-month

rolling average and 1.0 grain per 100 dscf at any time. Id. at 15;

Proposed Permit at 6 (special cond. IX.B.1).

In comments on the draft permit, Pio Pico raised concerns about

its ability to comply with the proposed emission limit of

0.0065 lb/MMBtu when operating at low-load levels. See RTC at 6. Pio

Pico explained that the facility can comply with the proposed emission

limit when operating at full load, but “that at low load this level may not

be achievable at all times.” See id.

In response to Pio Pico’s concern, the Region revised the

proposed emission limit. Applying a load-based approach, the Region

created a two-tier emission limit with 0.0065 lb/MMBtu as the

applicable emission limit when the plant operates above 80 percent load,

and with 5.5 lb/hr as the emission limit for all operations below

80 percent load. See Permit at 6 (cond. IX.B.1); RTC at 6. 

2. Challenges on Appeal

Sierra Club takes issue with the revised emission limit and

asserts that there is no basis in the record for the determination that:

(1) 0.0065 lb/MMBtu is an appropriate limit for operations greater than

80 percent load; (2) 80 percent load represents the operating range below

which 0.0065 lb/MMBtu is not achievable; and (3) 5.5 lb/hr represents

the lowest achievable emission rate for all loads lower than 80 percent.

See Sierra Club Pet. at 23-29.
PIO PICO ENERGY CENTER 91

Sierra Club raised similar comments during the public comment period. See 63

RTC at 25. According to Sierra Club, the record on the draft permit did not explain how

the Region derived the 0.0065 lb/MMBtu emission limit from the performance test data

the Region examined as part of the BACT analysis. See id. at 26 (noting that 0.0065

lb/MMBtu represents more than eight times the average from the facility with lowest

emissions – 0.0008 lb/MMBtu – and is higher than the maximum observed at the three

facilities examined – 0.0049 lb/MMBtu). Sierra Club suggested the BACT limit should

have been closer to 0.0008 lb/MMBtu. Id.

In support of its assertions, Sierra Club argues that the record

fails to describe “how the Region concluded that 0.0065 lb/MMBtu

represents BACT” based on the performance test data the Region

evaluated.63 Id. at 23-27. Sierra Club suggests that BACT for PM

emissions should have been similar to the emission data from the test

facilities the Region examined as part of its BACT analysis. Id. at 24.

With respect to the selection of 80 percent load, Sierra Club argues that

the record does not support the Region’s conclusion that 80 percent

defines the point where 0.0065 lb/MMbtu is no longer achievable. Id. at

28. Finally, with respect to the inclusion of 5.5 lb/hr as BACT for loads

below 80 percent, Sierra Club claims that the Region did not conduct a

BACT analysis and instead only noted that 5.5 lb/hr was demonstrated

to protect ambient air quality standards and to be achievable at all

operating rates. Id. at 9; Sierra Club Reply Br. at 6-7.

Helping Hand Tools also challenges, although on different

grounds, the 5.5 lb/hr emission limit. Helping Hand Tools claims that

this limit is less restrictive than what is currently being achieved in

practice at other facilities. Helping Hand Tools Pet. at 4

3. Analysis

In light of the changes between the draft permit and the permit

as issued, which allow higher lb/MMBtu emissions than contemplated

in the draft permit to apply at all loads below 80 percent, and the

challenges Sierra Club and Helping Hand Tools raise, the Board must

determine whether the record reflects the permit issuer’s exercise of

considered judgment in selecting BACT for PM. In doing so, the Board

will examine whether the record supports the selection of:
92 PIO PICO ENERGY CENTER

(a) 0.0065 lb/MMBtu as BACT for loads above 80 percent; (b) the

selection of 80 percent as the defining criterion for applying different

emission limits; and (c) 5.5 lb/hr as BACT for loads below 80 percent.

The Board’s analysis begins with the selection of 0.0065 lb/MMBtu.

a. Selection of 0.0065 lb/MMBtu as BACT for Loads Above

80 Percent

In its response to Sierra Club’s comments on the draft permit

questioning the selection of 0.0065 lb/MMBtu as representative of

BACT, the Region explained that: (1) because this is a natural gas-fired

combustion turbine, EPA must set a limit that is technically feasible to

meet on an ongoing basis; (2) the Facility might not be able to meet the

lowest emission rate observed at the test facilities on an ongoing basis

because the turbines Pio Pico plans to install will not have add-on control

equipment, and therefore PM emissions will vary depending on sulfur

content in natural gas, the burning off of lubricant oils, and turbine

maintenance cycles; (3) while the sulfur content of the natural gas Pio

Pico will use is limited to 0.25 grain per 100 dscf on an annual average,

the sulfur content of the fuel used at the test facilities is unknown;

(4) achieving an emission rate during a single source test does not

guarantee that the emission unit will achieve that rate on an ongoing

basis; (5) PM emissions vary even on identical turbine models due to

different operating conditions; and (6) the turbines at the test facilities’

and at Pio Pico’s are different both in size and model (i.e., GE LMS 6000

at test facilities and GE LMS 100 at Pio Pico). RTC at 26-27. In light

of this and because of the lack of test data for the specific turbine model,

the Region concluded that setting the emission limit at 0.0065 lb/MMBtu

– the expected PM emissions based on the engineering design of the

specified model of natural-gas fired turbine (i.e., GE LMS 100) – was

appropriate in this case. See id.; Fact Sheet & AAQIR at 14. 

The Board does not disagree with the principal factors that form

the basis of the Region’s analysis. It is well established that a permit

issuer may appropriately consider the extent to which available data in

the record evidence the ability to consistently achieve certain emission

rates or control effectiveness of the selected technology. See, e.g.,
PIO PICO ENERGY CENTER 93

Newmont, 12 E.A.D. at 440. As noted in Part VIII.F.1, “permit writers

retain discretion to set BACT levels that ‘do not necessarily reflect the

highest possible control efficiencies but, rather, will allow permittees to

achieve compliance on a consistent basis.’” Newmont, 12 E.A.D. at 442

(quoting Steel Dynamics II, 9 E.A.D. at 188); see also Part VII.F.2

(discussing use ofsafety factors as a way to take into account variability

and fluctuations in the performance of the selected control technology).

At the same time, the permit issuer has an obligation “to

adequately explain its rationale for selecting a less stringent emission

limit, and that rationale must be appropriate in light of all the evidence

in the record.” Newmont, 12 E.A.D. at 440 (emphasis added); cf. In re

Vulcan Constr. Materials, LP, PSD Appeal No. 10-11, slip op. at 32

(EAB Mar. 2, 2011), 15 E.A.D. __ (“Selection of a reasonable safety

factor is not an opportunity for the permittee to argue for, or for the

permit issuer to set, a safety factor that is not fully supported by the

record, or that does not reflect the exercise of the permit issuer’s

considered judgment in determining that the emissions limit, including

the safety factor, constitutes BACT.”). This is because “BACT

determinations are one of the most critical elements in the PSD

permitting process.” In re Miss. Lime Co., PSD Appeal No. 11-01, slip

op. at 17 (EAB Aug. 9, 2011), 15 E.A.D. __ (citing In re Desert Rock

Energy Co., LLC., PSD Appeal Nos. 08-03 through 08-06, slip op. at 50

(EAB Sept. 24, 2009), 14 E.A.D. __). As such, “the determination of

what represents BACT for a specific facility must reflect the considered

judgment on the part of the permit issuer, and must be well documented

in the administrative record.” Id.

In this particular case, while the Region’s analysis may explain

why the Region selected a less stringent lb/MMBtu limit than the

performance levels observed at the three test facilities, why the emission

limit for the Pio Pico Facility should take into account variability and

fluctuations in control efficiency, and how the 0.0065 lb/MMBtu figure

came about, the Region’s analysis fails to consider all of the evidence in

the record. As explained more fully below, it appears that the Region

dismissed or overlooked highly relevant information in the record

without adequate explanation. The overlooked information in the record
94 PIO PICO ENERGY CENTER

64 See Sierra Club’s Reply Br. at 6 n.8 (arguing that Panoche data did not form

the basis of the Region’s decision and claiming that the Region’s description of the data

is misleading).

appears to directly conflict with part of the Region’s underlying rationale

for selecting 0.0065 lb/MMBtu as the emission limit representative of

PM BACT for the Facility. 

The Region cites the lack of test data for the specific turbine

model being evaluated as one of the main reasons for deviating from the

emission rates observed at the test facilities and for selecting

0.0065 lb/MMBtu as BACT. See RTC at 27 (“Considering the lack of

test data for the specific turbine model we are evaluating, we do not

believe there is sufficient evidence to set a PM BACT limit lower than

the 0.0065 lb/MMBtu and 5.5 lb/hr in the Permit.”); Pio Pico Resp. at 22

(“there is no existing testing data for the LMS 100 model turbine”). This

rationale, however, fails to reflect all of the information in the record of

this case.

First, at the Region’s request, Pio Pico provided PM emission

test results from the Panoche Energy Center Project (“Panoche”), an

electric generating facility, also peaking, located in Fresno County,

California. See generally January 2012 Letter. Panoche utilizes four GE

LMS 100 natural gas-fired combustion turbine generators – the same

model turbine that Pio Pico plans to install. In January 2012, several

months before the Region issued the Fact Sheet and the response to

comments document, Pio Pico provided PM emission data from 2009 to

2011 for the four turbines at Panoche. Inexplicably, none of the

documents that form the basis of the Region’s BACT analysis discuss

this information or explain why this information is not part of the BACT

analysis.64

The first and seemingly only place where the Region references

this information is a cursory footnote in the Region’s response to the

petitions. See Region Resp. at 28 n.15. The Region states: 
PIO PICO ENERGY CENTER 95

See, e.g., In re Indeck-Elwood, LLC, 13 E.A.D. 126, 162 n.68 (EAB 2006) 65

(noting that a permit issuer must articulate the reasons for its conclusion and must

adequately document its decisionmaking as part of the permit decision itself and not for

the first time on appeal); In re Chem. Waste Mgmt, 6 E.A.D. 144, 151-52 (EAB 1995)

(declining to rely on rationale permit issuer raised for the first time in response to an

appeal); In re Amoco Oil Co., 4 E.A.D. 954, 964 (EAB 1993) (remanding issue where

permit issuer’s rationale was articulated for the first time on appeal); In re Waste Techs.

Indus., 4 E.A.D. 106, 114 (EAB 1992) (rejecting post-hoc argument raised by permit

issuer in response to an appeal).

See, e.g., Miss. Lime, slip op. at 25, 15 E.A.D. at __ (remanding faulty BACT 66

analysis to allow public comments); Knauf I, 8 E.A.D at 175 (remanding incomplete

BACT analysis and requiring that new analysis be made available for public comments).

In its recent review of the administrative record for this

matter, the Region noted that performance test data for

LMS100 turbines at the Panoche Energy Center * * *

was submitted to the Region by the Applicant on

January 12, 2012. This [sic] data, with PM emissions in

the range of 0.001 to 0.012 lb/MMBtu, shows

considerable variability in emissions from the LMS100

turbines. These results are generally consistent with the

Region’s conclusion that the 0.0065 lb/MMBtu PM

limit selected for the [Pio Pico facility] was reasonable

* * *.

Id. (emphasis added).

The Region’s post-hoc analysis comes too late; the analysis

should have been part of the record available for public comments before

the Region determined the final PM BACT limits. Moreover, the 65

Region’s post-hoc summary lacks a detailed explanation of all the data

and its significance. According to the Region, PM emissions from 66

Panoche range between 0.001 lb/MMBtu and 0.012 lb/MMBtu, showing

considerable variability in emissions from LMS 100 turbines. Id. While

the Panoche data do show variability, the majority of the available data

are below 0.0065 lb/MMBtu. Out of the thirty-six data points available,

only two show emission rates above 0.0065 lb/MMBtu (i.e.,

0.012 lb/MMBtu and 0.007 lb/MMBtu). See January 2012 Letter at 13;
96 PIO PICO ENERGY CENTER

Region Resp. excerpt E tab. 3. The rest of the data points are below

0.005 lb/MMBtu, except for two data points, one at 0.00605 lb/MMBtu

and another at 0.006 lb/MMBtu, which are still slightly under

0.0065 lb/MMBtu. The Region’s footnote does not analyze these data

in detail nor explain how, if at all, they affect the Region’s PM BACT

determination for Pio Pico, and more importantly, neither do the Fact

Sheet nor the response to comments document.

The record also shows that another facility, the CPV Sentinel

Project (“CPV Sentinel”), also utilizes the GE LMS 100 turbines. See

RTC at 50. Mr. Sarvey brought this facility to the Region’s attention in

his comments on the draft permit. See id. (noting that this facility is

permitted at 5 lb/hr). In responding to this comment, the Region merely

explained the difference between an emission limit with one significant

figure and one with two significant figures (i.e., 5 lb/hr vs. 5.0 lb/hr ).

See id. at 51. The record, however, does not demonstrate that the Region

factored the data of this facility into its BACT analysis or determined

that the facility was inappropriate to use for comparison. See id.

As the NSR Manual states, “[i]n the absence of a showing of

differences between the proposed source and previously permitted

sources achieving lower emissions limits, the permit agency should

conclude that the lower emissions limit is representative for that control

alternative.” NSR Manual at B.24 (emphasis added). The permitting

agency has an obligation to investigate and examine recent regulatory

determinations, especially if, as in this case, examples are brought to its

attention. Miss. Lime, slip op. at 23, 15 E.A.D. at ___. The existence of

a similar facility with a lower emissions limit creates an obligation for

the permit applicant and permit issuer to consider and document whether

the same emission level can be achieved at the proposed facility. Id.

Simply stating that PM emissions vary even on identical turbine models,

without considering and documenting BACT limits and emission rates

from existing facilities with the same turbine model, is not sufficient to

satisfy this obligation. Cf. Miss. Lime, slip op. at 33, 15 E.A.D. at __

(noting importance of carefully evaluating multiple sources and data

points as well as information such as recent permit limits at similar

facilities).
PIO PICO ENERGY CENTER 97

 Neither does Pio Pico. As explained earlier, the Region modified the 67

proposed emission limit for PM in response to Pio Pico’s comments raising concerns

about the Facility’s ability to meet the emission limit proposed in the draft permit during

low loads. The Region was persuaded by information Pio Pico provided in a December

2011 submission. See Letter from Steve Hill, Sierra Research, to Gerardo Rios, Chief,

Air Permits Office, U.S. EPA Region 9 (Dec. 8, 2011) (A.R. I.31) [hereinafter December

2011 Letter]; RTC at 6 n.3. Pio Pico’s submission explained that: (1) it had originally

proposed a compliance limit of 5.5 lb/hr, rather than a limit expressed in lb/MMBtu;

(continued...)

The Region had an obligation to investigate and evaluate

Panoche and CPV Sentinel, particularly considering the fact that the

Region had information about them in the record and was therefore

aware of their existence. The Region also had an obligation to explain,

as it did with the three test facilities it examined in the Fact Sheet,

whether there are differences between the Facility and these two

additional facilities, and/or whether source-specific factors exist that

justify the selection of an emission limit that is higher than that achieved

by, or permitted at, these particular sources.

The Region’s failure to adequately consider at the appropriate

time what appears to be significant information casts doubt on the BACT

analysis and on the adequacy of 0.0065 lb/MMBtu as emission limit

representative of BACT for this Facility. Therefore, the Board

concludes that the record does not reflect the exercise of the permit

issuer’s considered judgment in determining that the emissions limit

selected constitutes BACT. 

b. Selection of 80 Percent Load as the Defining

Criterion for Applying Different Emission Limits

Examination of the record also shows a gap in adequately

explaining the selection of 80 percent load as the criterion for defining

when different emission limits apply. Neither the response to comments

document nor the Region’s response to the petitions explain whether a

two-tier approach, like the one adopted in this case, is typical for this

type of facility, or why 80 percent, rather than any other potential

percentage, was selected as the threshold.67
98 PIO PICO ENERGY CENTER

(...continued) 67

(2) the proposed limit was intended to apply under all circumstances; (3) in its “achievedin-practice” emission rate analysis, it considered PM BACT limits from other sources, but

the most recently permitted units had no operating history; (4) for the only facility with

an operating history, it was not possible to determine compliance with the limit expressed

in lb/MMBtu, and initial compliance testing results for total PM showed that the facility

did not comply with its PM limits. Pio Pico concluded that there is no “achieved-inpractice” BACT. December 2011 Letter at 2-4. Notably, Pio Pico’s letter does not

suggest any specific load percentage as a threshold.

See RTC at 6 (explaining that turbines are less fuel efficient at lower loads 68

and that because there is no control device for PM emissions the applicant cannot take

measures to improve the lb/MMBtu PM emissions at lower loads).

See RTC at 6 (stating that “[t]he lb/MMBtu is being applied at high loads 69

because it represents the testing conditions that will be used to demonstrate compliance

during performance testing. Compliance with the lb/MMBtu limit at high loads

demonstrate that the turbines are meeting BACT by using good combustion practices.

The 5.5 lb/hr limit is the emission rate that was used in the application to demonstrate

compliance 10 2.5 with the PM and PM NAAQS. This limit is achievable at lower loads

because PM emissions per unit of time will be less at lower loads when less fuel is being

used.”).

For instance, the Region’s response to comments explained why

a change in the proposed limit was necessary, why emission rates from 68

the test facilities may not apply to the Pio Pico Facility, and why Pio

Pico’s Facility should be able to meet the new emission limits. RTC

at 6, 26. The Region’s response to comments also explained why the

Permit requires an emission limit expressed in units of lb/MMBtu, the

source of the new emission limit of 5.5 lb/hr, and why the lb/hr limit is

achievable at low loads. Id. The Region’s response to comments, 69

however, did not explain the basis for selecting 80 percent as the

threshold above which 0.0065 lb/MMBtu, and below which 5.5 lb/hr,

represents BACT.

In its response to the petitions, the Region asserts that the

selection of 80 percent load is based on its best professional judgment,

reiterates the reasons provided in the response to comments, and explains

why PM performance test data from other facilities are difficult to use

for determining PM BACT limits. See Region Resp. at 29-30. These
PIO PICO ENERGY CENTER 99

 One of the arguments Sierra Club raises in its petition is that the record does 70

not show consideration of low-load emission data, Sierra Club Pet. at 9, the implication

being that the Region should have evaluated low-load emission rates from different

facilities to determine the load at which 0.0065 lb/MMBtu is no longer achievable. The

Region’s response to the petitions does not address this argument. On remand, the

Region should evaluate low-load emission data from other facilities, if available, or

explain why it is unnecessary or infeasible to perform such an analysis, and should

explain the reasons for selecting a specific load as the threshold for applying two different

BACT limits.

 In its December 2011 Letter, Pio Pico explains that the expected emission 71

rate at low load is 0.01 lb/MMBtu. December 2011 Letter at 6.

2

 Notably, in selecting a BACT limit for CO that corresponds to the Facility’s 72

operation at 50 percent load, the Region rejected Pio Pico’s suggestion to select a limit

based on a heat rate calculation that corresponds to 75 percent load. The Region decided

against Pio Pico’s suggestion because of a lack of technical justification for why the limit

should be based at 75 percent. RTC at 16; see supra Part VIII.F.1. Unlike here, the

2

record regarding the selection of a BACT limit for CO explains the Region’s rationale

for selecting a limit that corresponds to the Facility’s operation at 50 percent load.

assertions, however, are insufficient to compensate for omissions in the

response to comments document. Lack of an adequate explanation of 70

the rationale for selecting 80 percent load above other load percentages

cannot be dismissed as a trivial matter. As Sierra Club points out, the

new emission limit for operations below 80 percent is less stringent than

0.0065 lb/MMBtu. Because this represents a significant change 71

between the draft and final Permit, at a minimum, the record should

reflect the Region’s technical considerations for selecting this particular

level. Simply stating that the Region used its best professional judgment

to select 80 percent, without an articulation of what went into that

judgment, is insufficient and requires a remand. E.g., Vulcan, slip op.

72

at 33-34, 15 E.A.D. at __ (remanding in part because administrative

record did not include any discussion of what an appropriate compliance

margin should be, why the margin should be set at a particular level, or

what data from other facilities might support the proposed level); In re

Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 589-90

(EAB 2006) (remanding permit condition because permit issuer failed to

provide rationale explaining “precisely why it ultimately selected five

days (as opposed to any other number of days, such as six or seven)”);
100 PIO PICO ENERGY CENTER

 In its permit application, Pio Pico proposed a PM compliance limit of 73

5.5 lb/hr applicable under all circumstances (including full load, startup, and shut down).

See Revised Application at 4.32 tbl.4-17. 

 Another argument Sierra Club raises is that the record appears to show that 74

the emission rates in lb/MMBtu at low loads for at least one other facility are significantly

(continued...)

In re Ash Grove Cement Co., 7 E.A.D. 387, 417 (EAB 1997) (explaining

that the permit issuer “must articulate with reasonable clarity the reasons

for [its] conclusions and the significance of the crucial facts in reaching

those conclusions”).

c. Selection of 5.5 lb/hr as BACT for Loads Under

80 Percent

Similarly, the selection of 5.5 lb/hr as BACT for loads under

80 percent is not adequately explained in the record. The record lacks

a formal BACT analysis demonstrating that 5.5 lb/hr constitutes BACT

for loads under 80 percent. Here, the record establishes that:

(1) 5.5 lb/hr is the compliance limit Pio Pico requested in its

application as representing expected PM emissions from the GE 73

LMS 100 turbines based on their engineering design, Fact Sheet &

AAQIR at 14; (2) Pio Pico used this figure to demonstrate compliance

with the NAAQS, RTC at 6; and (3) 5.5 lb/hr is equivalent to 0.0065

lb/MMBtu measured at or near peak turbine load, January 2012 Letter

at 12. The record also shows that the Region was interested in an

emission limit expressed in units of lb/MMBtu of heat input and thus

requested that Pio Pico provide additional analysis to support such an

emission limit for PM. December 2011 Letter at 2 (explaining that

Region requested that the proposed limit be expressed as an emission

rate in units of lb/MMBtu in order to facilitate comparison with other

facilities).

While the record explains how the 5.5 lb/hr and

0.0065 lb/MMBtu figures were derived, there is no formal BACT

analysis providing support for the determination that 5.5 lb/hr constitutes

BACT for loads below 80 percent. Notably, the Region’s BACT 74
PIO PICO ENERGY CENTER 101

(...continued) 74

lower than the lb/MMBtu at low loads with a 5.5 lb/hr limit. See Sierra Club Pet. at 9,

29. The Region does not address this specific argument; therefore, the Region should

address this argument on remand.

analysis focused on comparing performance test data expressed in units

of lb/MMBtu of heat input from similar simple-cycle plants. Fact Sheet

& AAQIR at 14; see also December 2011 Letter at 2, tbl. 1 (excluding

certain facilities from further evaluation because PM limit was not

expressed in lb/MMBtu). The Region, however, did not compare BACT

limits, performance test data, or emission rates at different loads in lb/hr

from similar simple-cycle facilities, or explain why these types of

analyses are either unfeasible or unnecessary in this case, nor did it

conduct any other type of analysis to establish the 5.5 lb/hr limit as

BACT. Fact Sheet & AAQIR at 14. As noted above, without an

articulation in the record of the BACT analysis, the Board cannot

perform any review of that analysis and, therefore, cannot conclude that

it meets the requirement of rationality. See In re Gov’t of D.C. Mun.

Separate Storm Sewer Sys., 10 E.A.D. 323, 342 (EAB 2002) (noting that

permit issuer failed to commit its analysis to writing and remanding

permit to provide or develop record support for its permit determination).

Therefore, even if 5.5 lb/hr in fact represents PM BACT for the Facility,

the Board cannot, on this record, properly review the Region’s analysis

or determine whether the Region clearly erred in selecting 5.5 lb/hr as

BACT for loads below 80 percent. As noted earlier, BACT

determinations are critical elements of the PSD permitting program and

must be well documented in the administrative record.

4. Because the Record Does Not Reflect the Permit Issuer’s

Considered Judgment in Selecting BACT Limits for PM, a

Remand Is in Order

To correct the record inconsistencies identified above and the

lack of adequate support and explanation for the new load-based PM

emission limits, the Board remands this permit condition to the Region

so that the Region may prepare a revised BACT analysis and make a new

BACT determination for PM based on the exercise of its technical
102 PIO PICO ENERGY CENTER

 Because the Board is remanding the permit to the Region for additional 75

examination of the BACT emission limits for PM, the Board need not address the

argument Helping Hand Tools raises about 5 lb/hr being a more restrictive limit than

5.5 lb/hr, and the Region’s corresponding response. See Helping Hand Tools Pet. at 4;

RTC at 50.

judgment after consideration of all of the relevant information.

Specifically, on remand the Region should: (1) consider emission data

and BACT limits from Panoche and CPV Sentinel in its BACT analysis

and document whether the limits or emission rates observed at these

facilities can or cannot be achieved at the Facility; (2) explain whether

a two-tier load-based approach is typical for similar facilities, and if not,

why such an approach is appropriate in this case. If a load-based

approach continues to be the Region’s choice, the Region must:

(1) provide a rationale explaining any specific load level selected; and

(2) provide record support for the emission limits selected as BACT for

high and low loads consistent with this decision. In addition, the 75

Region is directed to reopen the public comment period to provide the

public with an opportunity to review and comment on this analysis. 

H. Helping Hand Tools Has Not Demonstrated That the Region Clearly

Erred by Relying on Federally Enforceable Permit Terms Included

in the SDAPCD’s Final Determination of Compliance to Conclude

That the Facility’s Potential to Emit Carbon Monoxide Will Not

Exceed the Significant Emission Threshold That Would Otherwise

Require Compliance with the PSD Program

Helping Hand Tools argues that the Region clearly erred when

it concluded that the Facility’s carbon monoxide (“CO”) emissions fall

below the 100 tons per year (“tpy”) threshold that would require

compliance with the PSD program, and urges the Board to remand the

Permit to the Region to recalculate the Facility’s potential to emit CO

and to conduct a BACT analysis for CO. Helping Hand Tools Pet. at 3-

4. Helping Hand Tools asserts that the Region incorrectly assumed that

CO emissions were greatest at the Facility’s maximum load, which in
PIO PICO ENERGY CENTER 103

 Carbon monoxide emissions result from incomplete combustion and thus 76

occur at higher rates when turbines operate at low and medium loads. See Office of Air

Quality, Planning & Standards, U.S. EPA, I Compilation of Air Pollutant Emission

Factors AP-42: Stationary Point and Area Sources at 3.1-4 (6th ed. Sept. 1998) (“AP-42

Guidance”), cited in Helping Hands Tools Pet. at 3 and RTC at 75; see also Revised

Application at 4.7; supra note 50.

turn caused the Region to underestimate the Facility’s emissions. Id. 76

at 3. In particular, Helping Hand Tools challenges the Region’s

conclusion that maximum CO emissions at 100 percent and 50 percent

loads are expected to be the same, and alleges that the Region “fails to

explain how the oxidation catalyst control efficiency leads to identical

emission rates at different loads.” Id. Finally, Helping Hand Tools

alleges that the Region cannot rely on the 96.4 tpy CO emission limit

included in the Final Determination of Compliance that SDAPCD issued

to the Facility as “an effective federally enforceable CO permit limit.”

Id. at 4 (citing RTC at 76); see generally Final Determination of

Compliance, San Diego Air Pollution Control District (May 4, 2012)

(A.R. V.33) [hereinafter SDAPCD Permit].

The Region states that the SDAPCD Permit requires each turbine

to be equipped with an oxidation catalyst to control CO emissions from

the Facility, such that emissions from the turbines at any load will equal

4.0 parts per million dry volume (“ppmvd”) per hour corrected to

15 percen 2t oxygen (“O ”), 0.0088 lb/MMBtu, and 7.97 lb/hr regardless

of load. See RTC at 75 (citing Revised Application at 4.32, 1.51

tbl.1C.1); Revised Application at 1.53 tbl.1C.3 (detailing calculations for

maximum hourly, daily, and annual criteria pollutant emissions); Region

Resp. at 34. The oxidation catalyst is a post-combustion, or add-on air

pollution control technology, through which exhaust gas emitted from

each of the turbines passes. The oxidation catalyst reduces the

concen 2tration of CO in the exhaust gas to 4.0 ppmvd at 15 percent O
104 PIO PICO ENERGY CENTER

 Specifically: 77

The CO oxidation catalyst is an add-on device that is placed in the

turbine exhaust duct. It promotes the oxidation of hydrocarbon

compounds to carbon dioxide (CO2) and water (H2O) as the

emission stream passes through the catalyst bed. The catalyst is

usually a precious metal such as platinum, palladium, or rhodium.

* * * The oxidation process takes place spontaneously, without the

requirement for introducing reactants. The performance of a CO

oxidation catalyst is affected by factors such as operating

temperature and the presence of poisons in the emission stream.

Letter from Sims Roy, Emissions Standards Div., Combustion Group, Office of

Air Quality, Planning & Standards, U.S. EPA, to Docket A-95-51, Re: Hazardous Air

Pollutant (HAP) Emission Control Technology for New Stationary Combustion

Tur b in es, a tt ach . A, at 1 (Aug. 2 1, 2001), available at

http://deq.state.ms.us/MDEQ.nsf/pdf/epd_CT_HAP_TECHNICAL_GUIDANCE/$Fil

e/CT_HAP.pdf?OpenElement. 

 As explained below in more detail, the significant emission rate for CO is 78

100 tpy, 40 C.F.R. § 52.21(b)(23)(i), whereas the Facility’s potential to emit is 96.4 tpy

of CO. See Fact Sheet & AAQIR at 6-7 (noting that each turbine is expected to emit

approximately 32.1 tpy of CO). 

before it is released into the atmosphere. See Revised Application 77

at 3.33; see also Fact Sheet & AAQIR at 4.

The Region maintains that because the SDAPCD Permit requires

the oxidation catalyst, regardless of load, the annual mass emissions of

CO will equal 96.4 tpy. RTC at 75. The Region further asserts that

because the terms of the SDAPCD Permit are federally enforceable, the

Facility’s potential to emit CO is not “significant,” and thus the Facility

78

is not subject to PSD requirements. RTC at 75-76; Region Resp. at 24.

The question the Board must answer is whether the Region

clearly erred by relying on the SDAPCD Permit to establish a federally

enforceable CO emission limit that effectively precludes the Facility

from the need to comply with PSD requirements for CO. To begin its

analysis of this question, the Board first briefly reviews the rules that

determine under what circumstances PSD requirements apply to a

particular pollutant.
PIO PICO ENERGY CENTER 105

 Beginning in July 2011, new stationary sources that emit or have the potential 79

2

to emit 100,000 tpy or more of CO -equivalent are subject to regulation under the PSD

program. See 40 C.F.R. § 52.21(b)(49)(v); see generally Office of Air Quality Planning

& Standards, U.S. EPA, PSD and Title V Permitting Guidance for Greenhouse Gases 1-5

(Mar. 2011) (explaining relevant background regarding regulation of GHGs). 

A source’s potential to emit relates to its inherent ability to emit

air pollutants. Shell Offshore 2012, slip op. at 17, 15 E.A.D. at ___;

Shell Offshore 2007, 13 E.A.D. at 365; In re Peabody W. Coal Co.,

12 E.A.D. 22, 30 (EAB 2005). The PSD regulations define potential to

emit as:

[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 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. Secondary emissions do not

count in determining the potential to emit of a stationary

source.

40 C.F.R. § 52.21(b)(4) (emphases added). In general, EPA evaluates a

source’s potential to emit to determine whether the source is “major,”

and thus subject to regulation under the CAA. See CAA § 165(a),

42 U.S.C. § 7475(a) (requiring PSD permits for any “major emitting

facility” on which construction is commenced); 40 C.F.R.

§ 52.21(b)(1)(i) (defining a “major stationary source,” in part, as “any

stationary source which emits, or has the potential to emit, 250 tons or

more per year of a regulated NSR pollutant”). “Thus, [potential to 79

emit] is a technical determination that ‘is jurisdictional in nature.’”

Peabody, 12 E.A.D. at 30 (quoting Ala. Power Co. v. Costle, 636 F.3d

323, 352 (D.C. Cir. 1979)); accord Shell Offshore 2012, slip op. at 17,

15 E.A.D. at ___.
106 PIO PICO ENERGY CENTER

The regulations define “regulated NSR pollutant” as any CAA pollutant for 80

which a NAAQS has been promulgated, any pollutant subject to standards promulgated

under section 111 of the CAA, a Class I or Class II substance subject to title VI of the

CAA, or any pollutant that is otherwise subject to regulation under 40 C.F.R.

§ 52.21(b)(49). 40 C.F.R. § 52.21(b)(50). 

x

 The level of significance is, for example, 40 tpy for NO , 40 tpy for sulfur 81

dioxide, 100 tpy for CO, and 40 tpy for volatile organic compounds. 40 C.F.R.

§ 52.21(b)(23) (listing various air pollutants and levels of emissions deemed

“significant”).

In this instance, the Facility is a new major source covered under

the PSD program because it will have the potential to emit more than

100,000 tpy of greenhouse gases as provided in 40 C.F.R.

§ 52.21(b)(49). See Fact Sheet & AAQIR at 5-6 & tbl. 6-1 (estimating

annual 2 mass CO emissions to be 623,299 tpy); see also Revised

Application at 1.1, 4.49. As the Region explained in the Fact Sheet, once

a source is considered major for at least one regulated NSR pollutant,

80

the PSD program also applies to any other regulated pollutant that the

facility has the potential to emit in significant amounts, i.e., at or above

the significant emission rate. See 40 C.F.R. § 52.21(b)(23)(i) (noting

that “significant means, in reference to * * * the potential of a source to

emit,” that a source would emit at a rate equal to or in excess of the

pollutant-specific emission rates set forth in the rule); Fact Sheet & 81

AAQIR at 6 & tbl. 6-1 (noting the Facility’s estimated annual emissions,

major source threshold, and significant emission rate for regulated NSR

pollutants); Revised Application at 4.11-.12. 

Concurrent with the Region’s PSD permitting process, SDAPCD

received an application for a Determination of Compliance from Pio Pico

and undertook a review of the air quality impacts of the proposed
PIO PICO ENERGY CENTER 107

 At the same time it submitted an application to SDAPCD, Pio Pico also 82

submitted an Application for Certification (“AFC”) to the CEC. Projects that require an

AFC must also obtain a determination of compliance from the local air district. The

District further explained its role when it issued the SDAPCD Permit in May 2012:

The [Facility] is subject to the approval of the [CEC] because the

proposed power plant has a nominal rating greater than 50 MW. 

The applicant filed an [AFC] with the CEC in February 2011 (CEC

Docket No. 11-AFC-01). The [SDAPCD] is considered a

responsible agency for this approval and is required to submit a

Preliminary Determination of Compliance (PDOC) and a Final

Determination of Compliance (FDOC) to the CEC. Pursuant to

District Rule 20.5, the Final Determination of Compliance review is

functionally equivalent to an Authority to Construct. 

SDAPCD Permit at 1; see also Revised Application at 4.19 (explaining that new power

plant projects reviewed under the CEC AFC process must obtain an FDOC from the local

air district that, when all of the conditions from the FDOC are incorporated into a CEC

Final Decision, constitute an Authority to Construct); SDAPCD Permit at 28-29 (noting

that the FDOC is equivalent to an authority to construct and will be submitted to the

CEC). 

Facility. SDAPCD Permit at 1. Among other things, the SDAPCD 82

Permit requires Pio Pico to install oxidation catalyst technology to

control emissions of both CO and volatile organic compounds (“VOCs”).

SDAPCD Permit at 1, 4, 20 (noting that the oxidation catalyst add-on air

pollution control system “is the only post-combustion technology

currently available to control CO, VOCs, and toxic emissions”). With

this background in mind, the Board now turns to the substance of

Helping Hand Tools’ challenges to the Region’s CO permitting decision.

Helping Hand Tools first asserts that the Region erred by

underestimating the Facility’s potential to emit CO because it based its

calculation on the Facility’s operation at 100 percent load, whereas CO

emissions generally increase as load decreases due to incomplete

combustion. Helping Hand Tools Pet. at 3-4; see also Letter from

Johannes Epke, Helping Hand Tools, to Roger Kohn, U.S. EPA

Region 9, at 1-2 (July 24, 2012) [hereinafter Helping Hand Tool Cmt.].

The Region responded to Helping Hand Tools’ comments on the draft

permit:
108 PIO PICO ENERGY CENTER

While EPA agrees that uncontrolled CO emissions from

the engines will vary between 50% and 100% load,

these engines will be equipped with oxidation catalysts.

Regardless of load, the maximum CO emission rates

from the Project (excluding startups ands shutdowns,

which are accounted for separately) are expected to be

4.0 ppmv @ 15% O2, 0.0088 lb/MMBtu, and 7.97 lb/hr.

These rates were calculated from emission

concentration rates and the exhaust flow rates from

vendor performance data, and reflect the control

efficiency expected to be achieved by the oxidation

catalyst required by the permit issued to [Pio Pico] by

the SDAPCD.

EPA concurs with the CO emission data presented by

the applicant. The SDAPCD permit contains effective

federally enforceable CO emission limits * * * . [The

Facility] does not have “significant” emissions of CO,

as that term is defined in the PSD regulations at 40 CFR

[§] 52.21, and therefore it is not subject to PSD review.

RTC at 75-76 (emphases added) (citations omitted). Helping Hand

Tools acknowledges the Region’s response in its petition, stating that it

was “unsatisfied by EPA’s explanation that the maximum CO emissions

stated in the Permit applies to all loads,” and also challenges similar

conclusions in the Revised Application that maximum CO emissions at

all loads are expected to be the same, stating that “[t]he reasoning behind

this claim is unknown.” Helping Hand Tools Pet. at 3.

As explained above, a source’s potential to emit “is a technical

determination that ‘is jurisdictional in nature.’” Peabody, 12 E.A.D.

at 30 (quoting Ala. Power Co. v. Costle, 636 F.3d 323, 352 (D.C. Cir.

1979)). Here, Helping Hand Tools’ statements that it is unsatisfied with

the Region’s explanation and that the reasoning for the Region’s decision

is unknown do not demonstrate that review of this issue is warranted

given the high threshold a petitioner must meet to obtain review of a

permit issuer’s fundamentally technical decision that is supported in the
PIO PICO ENERGY CENTER 109

record. E.g., In re Prairie State Generating Co., 13 E.A.D. 1, 100

(EAB 2006), aff’d sub nom. Sierra Club v. EPA, 499 F.3d 653 (7th Cir.

2007) (“We generally accord broad deference to permitting authorities

with respect to issues, such as this one, requiring the exercise of

technical judgment and expertise.”); accord In re BP Cherry Point,

12 E.A.D. 209, 228 (EAB 2005); Peabody, 12 E.A.D. at 22. Helping

Hand Tools has not substantively confronted the Region’s explanation,

which is particularly important in technical matters, and has not

explained why the Region’s decision was clearly erroneous. See, e.g.,

In re City of Palmdale, PSD Appeal No. 11-07, slip op. at 33-34

(EAB Sept. 17, 2012), 15 E.A.D. __, appeal docketed sub nom.

Simpson v. EPA, No. 12-74124 (9th Cir. Dec. 18, 2012).

Similarly, the Board rejects Helping Hand Tools’ second

assertion that the Region cannot rely on the federally enforceable permit

limit contained in the SDAPCD Permit. Helping Hand Tools maintains

that the underlying calculation of 96.4 tpy of CO emissions is flawed and

states the following in support of its assertion:

The 96.4 tpy is meant to represent the facility’s

maximum potential CO emissions based on physical and

operational design. * * * If the plant cannot emit more

than 96.4 tpy under the physical and operational design

of the facility, then it is unnecessary to rely on a permit

limit of 96.4 tpy. If EPA is attempting to allow [the

Facility] to avoid PSD review for CO by relying on a

permit limit of 96.4 tpy rather than a limit based on the

facility’s physical and operational design, this synthetic

minor CO status must be made clear and examined in

more detail.

Helping Hand Tools Pet. at 4. 

Helping Hand Tools’ objection to the Region’s reliance on the

CO emission limits in the SDAPCD Permit misconstrues the definitions

of both “potential to emit” and “federally enforceable” set forth in the

PSD regulations. As noted above, any physical or operational limitation
110 PIO PICO ENERGY CENTER

on the source’s capacity to emit a pollutant, including air pollution

control equipment, “shall be treated as part of [the source’s] design if the

limitation or the effect it would have on emissions is federally

enforceable.” 40 C.F.R. § 52.21(b)(4). Thus, if a permit contains a

federally enforceable limit, it is treated as part of the source’s design,

and the source’s potential to emit cannot properly be calculated without

that limit. See Shell Offshore 2007, 13 E.A.D. at 392 (noting that neither

the CAA nor its implementing regulations require calculation of a

source’s maximum capacity to emit absent federally enforceable

limitations); see also Shell Gulf of Mex. 2012, slip op. at 35, 15 E.A.D.

at ___. The PSD regulations define federally enforceable as follows: 

Federally enforceable means all limitations and

conditions which are enforceable by the Administrator,

including those requirements developed pursuant to

40 C.F.R. parts 60 and 61, requirements within any

applicable State implementation plan, any permit

requirements established pursuant to 40 C.F.R. 52.21 or

under regulations approved pursuant to 40 C.F.R.

part 51, subpart I, including operating permits issued

under an EPA-approved program that is incorporated

into the State implementation plan and expressly

requires adherence to any permit issued under such

program. 

40 C.F.R. § 52.21(b)(17). 

The Board agrees with the Region that the Region can rely on

the terms of the SDAPCD Permit, which requires the oxidation catalyst

to control both CO and VOC emissions, as an effective, federally

enforceable limit on CO emissions in the PSD permit. See RTC at 76;

see also John S. Seitz, Dir., EPA Office of Air Quality, Planning &

Standards, Release of Interim Policy on Federal Enforceability of

Limitations on Potential to Emit (Jan. 22, 1996) (“[T]he term ‘federally

enforceable’ should now be read to mean ‘federally enforceable or

legally and practicably enforceable by a state or local air pollution

control agency.’” (emphasis excluded)), quoted in Peabody, 12 E.A.D.
PIO PICO ENERGY CENTER 111

at 31 n.22. California established local air pollution control districts and

air quality management districts with the principal responsibility for

regulating air emissions from all sources other than motor vehicles. See

generally Cal. Health & Safety Code §§ 40000-41357 (Air Pollution

Control Districts);see also Revised Application at 4.15 (detailing history

of state air pollution control). The proposed Facility is under the local

jurisdiction of the SDAPCD, and thus, compliance with SDAPCD

regulations will assure compliance with state and federal air quality

requirements. See Cal. Health & Safety Code § 40001(a) (“Subject to

the powers and duties of the state board, the districts shall adopt and

enforce rules and regulations to achieve and maintain the state and

federal ambient air quality standards in all areas affected by emission

sources under their jurisdiction, and shall enforce all applicable

provisions of state and federal law.”); see also Revised Application

at 4.51. The District has been delegated the authority to implement

local, state, and federal air quality regulations in the San Diego air basin.

See SDAPCD Reg. II, R. 20.1(c)(26) (defining federally enforceable for

purposes of permitting new or modified sources as anything that can be

enforced by the EPA through either a state implementation plan or an

authority to construct or permit to operate, including, among other

things, “[a]ny term or condition of an Authority to Construct issued

pursuant to these rules and regulations which term or condition is

imposed pursuant to 40 CFR Parts 60 or 61, 40 CFR Part 52.21 or

40 CFR Part 51, Subpart I”). Thus, the District’s rules designed to

address new source review pollutants are enforceable at the local and

state level, and federally enforceable in terms of the Facility’s PSD

permit. 

Helping Hand Tools’ petition does not address the PSD

regulations that define potential to emit or federal enforceability, nor

does it explain why the Region’s decision constitutes clear error. Rather,

Helping Hand Tools essentially challenges the Region’s decision to rely

on the terms of the SDAPCD Permit as federally enforceable permit

terms within the PSD permit, which is an inherently technical decision.

The federal PSD permitting scheme envisions cooperation with state and

local permitting entities to ensure, as here, that new source construction

does not have a deleterious impact on local air quality. Given the
112 PIO PICO ENERGY CENTER

 The Board notes that Mr. Simpson’s petition does not demonstrate that he or 83

any other commenter raised this issue during the public comment period. As noted in

Part III, the failure to demonstrate that an issue was preserved is a basis for denying

review. E.g., Palmdale, slip op. at 31, 15 E.A.D. at __ (noting that the Board is not

required to scour the entire administrative record to determine whether an issue was

raised in comments below); In re ConocoPhillips Co., 13 E.A.D. 798, 801 (EAB 2008)

(same). However, because the Board is aware that Mr. Sarvey raised a similar issue, the

Board will not deny review of the issue Mr. Simpson raises on appeal on this basis. 

The Board, nonetheless, takes this opportunity to remind petitioners of the

importance of satisfying this requirement and of the new provision in part 124, which

applies to petitions filed after March 26, 2013, and reads as follows:

Petitioners must demonstrate, by providing specific citation to the

administrative record, including the document name and page

number, that each issue being raised in the petition was raised during

the public comment period (including any public hearing) to the

extent required by § 124.13. For each issue raised that was not

raised previously, the petition must explain why such issues were not

required to be raised during the public comment period as provided

in § 124.13. Additionally, if the petition raises an issue that the

Regional Administrator addressed in the response to comments

document issued pursuant to § 124.17, then petitioner must provide

(continued...)

Region’s thorough response to this issue, Helping Hand Tools has not

carried the heavy burden required to demonstrate that review of a permit

issuer’s technical decision is warranted. E.g., Prairie State, 13 E.A.D.

at 100; Peabody, 12 E.A.D. at 22. Thus, the Board denies review of the

CO emission limit in the Facility’s PSD permit. 

I. Mr. Simpson Has Not Demonstrated That the Region Clearly Erred

in Allowing the Use of Data from an Air Quality Monitor Located

Nine Kilometers from the Facility

The Board now examines Mr. Simpson’s challenge to the

location of the air quality monitors. Mr. Simpson claims that “EPA

failed to utilize the correct monitors” and “allowed the [permit] applicant

to utilize a distant monitor instead of the nearly adjacent ones including

the one at the prison.” Simpson Pet. at 8. Mr. Sarvey raised a similar

argument during the public comment period. See RTC at 65. There

83
PIO PICO ENERGY CENTER 113

(...continued) 83

a citation to the relevant comment and response and explain why the

Regional Administrator’s response to the comment was clearly

erroneous or otherwise warrants review.

40 C.F.R. § 124.19(a)(4)(B)(ii). 

Mr. Sarvey claimed that the monitoring site selected “is not

representative of the ambient air concentrations currently encountered

near the project site because it does not capture the air quality impacts

from the Otay Mesa Power plant and is located 9 [kilometers] away.”

See id. 

The Region fully addressed Mr. Sarvey’s comment, explaining

why the location of the monitoring site selected (the Chula Vista

monitoring station) was appropriate and clarifying that the emissions

from the Otay Mesa Power Plant were modeled as emissions from a

nearby source in the cumulative impacts analysis. Id. at 37 (explaining,

among otherthings,why site-specific monitoring was not required in this

case, why it was necessary to identify a representative background

concentration, and why the use of the Chula Vista monitor was

appropriate to satisfy regulatory requirements); id. at 65 (explaining that

2.5 the closest PM monitor is in fact the Chula Vista monitoring station,

and 2.5 that the cumulative impact analysis was only required for PM and

NO2).

Mr. Simpson does not confront the Region’s response to

comments by explaining why the Region’s explanation is clearly

erroneous. In fact, Mr. Simpson does not acknowledge that the Region

responded to a similar comment. Again, petitioners may not simply

reiterate comments made during the public comment period, but must

substantively confront the permit issuer’s subsequent explanations and

explain why the permit issuer’s response to comments is clearly

erroneous or otherwise warrants consideration. See supra Part III.

Failure to do so is a basis for denying review. In re Indeck-Elwood,

LLC, 13 E.A.D. 126, 143, 170 (EAB 2006). Because Mr. Simpson fails

to confront the Region’s response to comments and demonstrate that the

Region clearly erred in allowing the use of data from the Chula Vista
114 PIO PICO ENERGY CENTER

monitors, the Board denies review of Mr. Simpson’s challenge to the

location of the air quality monitors.

J. Mr. Simpson Has Not Demonstrated That the Region Clearly Erred

by Failing to Require Mitigation of Air Pollutants Through the Use

of Emission Reduction Credits

Mr. Simpson argues that “[t]he EPA failed to require adequate

mitigation, as detailed in April Sumer’ [sic] comment [that] the [a]ir

pollution credits are invalid.” Simpson Pet. at 8. The comments

Mr. Simpson references address the Determination of Compliance

proceedings conducted by the SDAPCD. See generally Sommer

SDAPCD Cmt. The Region counters that Mr. Simpson failed to meet the

threshold procedural requirements to obtain Board review because he did

not explain “how or where in comments on the Proposed Permit this

issue was raised, whether the Region responded to any such comments,

and, if so, on what basis he disagrees with the Region’s response.”

Region Resp. at 38. In addition, the Region notes that the credits Mr.

Simpson referenced, also known as emission reduction credits, are used

in nonattainment new source review permits, and thus are not properly

before the Board in this PSD proceeding. Id. at 38-39 (quoting RTC

at 61). 

The Board’s analysis of this issue with respect to procedural

requirements is similar to its analysis in the immediately preceding part

wherein Mr. Simpson challenges the location of the air quality monitor

used in the air quality analysis. Mr. Simpson’s petition does not include

any statements identifying where he or any other commenter raised this

issue during the public comment period of this PSD permit proceeding;

he only references Ms. Sommer’s comments on this point, which were

made during the SDAPCD proceeding. As the Board noted above,

failure to demonstrate that an issue has been preserved for review is a

basis for denying review. See supra Part III; see also note 88. The

Board, however, is aware that Mr. Sarvey raised a similar issue in

comments on the environmental justice analysis for this PSD permit, and

thus the Board will not deny review on this basis. See Sarvey Cmt. at 7;

RTC at 56. 
PIO PICO ENERGY CENTER 115

 Ms. Sommer’s comments, which Mr. Simpson references, also discuss 84

emission reduction credits and offsets, although Ms. Sommer made her comments in the

context of nonattainment new source review permitting. See Sommer SDAPCD Cmt.

at 5-7. 

In his July 24, 2012, comments on the proposed PSD permit,

Mr. Sarvey commented that, “[t]he mitigation for air impacts for this

project are not real time emission reduction credits but worthless paper

credits from past emission reductions which have no value in reducing

the existing emissions from the multitude of point sources near the

project.” See Sarvey Cmt. at 7. In response, the Region stated: 84

The commenter appears to suggest that mitigation may

be required or should be further considered in the

context of environmental justice impacts, but does not

explain why he believes that is the case. EPA does not

believe that mitigation for environmental justice

impacts is necessary or appropriate in this case given

that EPA’s PSD permitting action will not result in

disproportionately high and adverse human health or

environmental effects on minority populations and lowincome populations as explained above. We also note

that the commenter’s assertion about emission reduction

credits focus on matters that are not regulated under the

PSD permit. Nonattainment pollutants are addressed by

the State and District approvals and comprehensive air

quality planning processes, and thus are best addressed

by the State/local air quality programs.

RTC at 61. Mr. Simpson does not confront the Region’s response to

comments by explaining why it is erroneous, nor does he acknowledge

in his petition that the Region responded to a similar comment. This

Board has previously made clear that in order to obtain review, “the

petitioner must address the permit issuer’s responses to relevant

comments made during the process of permit development” and explain

why, in light of the permit issuer’s rationale, the permit is clearly

erroneous or otherwise warrants review. Peabody, 12 E.A.D. at 33.
116 PIO PICO ENERGY CENTER

 The Region made clear in its response to comments that the SDAPCD is

85

responsible for nonattainment new source review permitting, and in this instance the San

Diego Air District is a federal nonattainment area for ozone. See RTC at 61; see also

SDAPCD Reg. II, R. 20.3(d)(5) (discussing the requirement to provide offsets on a

pollutant-specific basis for emission increases of nonattainment air contaminants and their

precursors); Revised Application at 4.53. As this Board has previously noted:

The 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 fact, certain issues are expressly

excluded from the PSD permitting process. The Board will deny

review of issues that are not governed by the PSD regulations

because it lacks jurisdiction over them. 

Knauf I, 8 E.A.D. at 127; accord Shell Gulf of Mex. 2012, slip op. at 47, 15 E.A.D.

at ___; Russell City, slip op. at 134, 15 E.A.D. at ___.

Failure to do so is a basis for denying review. Mr. Simpson failed to

confront the Region’s response to comments and demonstrate that the

Region clearly erred by declining to address emission reduction credits.85

The Board therefore denies review of this issue.

IX. CONCLUSION & ORDER 

For all the foregoing reasons, the Board denies review of all the

issues except for PM BACT. Accordingly, the Board remands the

Permit in part and directs the Region to correct the record inconsistencies

regarding the BACT analysis for PM and the lack of adequate support

and explanation for the new load-based PM emission limits. The Region

is hereby directed to prepare a revised BACT analysis consistent with

Part VIII.G.4 of this decision, and to reopen the public comment period

to provide the public with an opportunity to review and comment on this

analysis.

Once the Region issues a final permit decision following the

public comment period required by this remand, that final permit

decision and the Board’s decision in this case become final agency

action subject to judicial review. 40 C.F.R. § 124.19(l). Although an

appeal to the Board is a prerequisite to judicial review of an initial final
PIO PICO ENERGY CENTER 117

permit decision, id. § 124.19(l)(1), such an appeal is not a prerequisite

to judicial review of a final permit decision following a Board remand

of a permit decision unless the Board “specifically provides that appeal

of the remand decision will be required to exhaust administrative

remedies.” Id. § 124.19(l)(2)(iii). The Board is not requiring, and will

not accept, an appeal to the Board on the final permit decision following

remand in this case.

So ordered.
" " " 

CERTIFICATE OF SERVICE 

I hereby certify that copies ofthe foregoing Order Remanding in Part and Denying 

Review in Part in the matter ofPio Pico Energy Center, PSD Appeal Nos. 12-04 through 12-06, 

were sent to the following persons in the manner indicated: 

By First Class Mail Return Receipt Requested: 

Robert Simpson 

27126 Grandview Avenue 

Hayward, CA 94542 

David C. Bender 

MCGILLIVRAY WESTERBERG 

& BENDER, LLC 

211 S. Paterson St., Suite 320 

Madison, WI 53703 

Jim Wedeking 

Attorney for Pio Pico Energy Center, LLC 

Sidley Austin, LLP 

1501 K St., N.W. 

Washington, D.C., 20005 

By Pouch Mail: 

Julie Walters 

Office ofRegional Counsel 

U.S. EPA Region 9 (MC ORC-2) 

75 Hawthorne Street 

San Francisco, CA 94105-3901 

/), "1 1/J/!J 

Dated:I1Ur t:7, ~ 

Johannes Hubert Epke 

Attorney for Helping Hand Tools 

1108 Fifth Ave. Suite 202 

San Rafael, CA 94901 

SIERRA CLUB 

Joanne Spalding 

Travis Ritchie 

85 Second St. 

San Francisco, CA 94105 

By Interoffice Mail: 

Kristi Smith 

Air and Radiation Law Office 

Office ofGeneral Counsel (MC 2344-A) 

Environmental Protection Agency 

1200 PemlSylvania Avenue, N. W. 

Washington, D.C. 20460 

Annette Duncan 

Secretary