p.1 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

60) ll-K-17 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 A M Sheet 60 of 142 
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*'?*!*: 

BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. t 

!M %^K< 

In the Matter of: 

Old Dominion Electric 

Cooperative 

Clover, Virginia 

Permit Applicant 

PSD Appeal No. 91-39 

0.-74-.37 

ORDER DENYING REVIEW 

In a petition dated June 3, 1991, the Southern Environmental 

Law Center, et al. (Petitioners) -/ requested review of a 

Prevention of Significant Deterioration (PSD) permit issued to 

Old Dominion Electric Cooperative (Old Dominion), for the 

construction of a 786 megawatt pulverized coal-fired steam 

electric generating station in Halifax County near Clover, 

Virginia. The proposed facility will be operated by Virginia 

Electric & Power Company (Virginia Power), a 50% co-owner of the 

facility, on behalf of both Old Dominion and Virginia Power. The 

permit determination was made by the Virginia Department of Air 

Pollution Control (Virginia or the State) on April 29, 1991, 

pursuant to a delegation of authority from the U.S. Environmental 

Protection Agency (EPA), Region III, Philadelphia, Pennsylvania. 

Because of the delegation, the Virginia permit is considered an 

•i/ The SELC filed its petition on behalf of itself and the 

Conservation Council of Virginia, Sierra Club, National Parks and 

Conservation Association, Trout Unlimited, Environmental Defense 

Fund, Natural Resources Defense Council, The Wilderness Society, 

Southside Concerned Citizens, and Virginia Wildlife Federation. 
P.3 

2 

Because of the delegation, the Virginia permit is considered an 

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

(1990); 45 Fed. Reg. 33413 (May 19, 1980)), and is subject to the 

review provisions of the applicable EPA regulations before 

becoming final, 40 CFR §124.19 (1990). 

Under the regulations governing this proceeding, there is no 

review as of right from the permit decision. See generally 4 0 

CFR §124.19. Review is discretionary. Ordinarily, a petition 

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

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

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

discretion that warrants review. The preamble to the regulations 

states that "this power of review should be only sparingly 

exercised," and that "most permit conditions should be finally 

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

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

permit should be reviewed is therefore on the Petitioners. After 

examining the issues raised by Petitioners, I conclude that 

Petitioners have not satisfied that burden in this instance. 

Virginia and Old Dominion filed responses to the petition 

stating their opposition to any review of the permit 

determination; Petitioners, in turn, filed a reply to the 

responses. Petitioners' principal objections to the permit are 

addressed below, seriatim. 
P.4 

3 

A. 

Increment Analvsis. U Section 165(a)(3) of the Clean Air 

Act provides that a permit applicant must demonstrate that 

emissions from the proposed facility "will not cause, or 

contribute to, air pollution in excess of," inter alia, certain 

statutorily allowable increases in pollutant levels, called 

"increments," in any area where PSD requirements apply, including 

specially designated mandatory "class I" areas—certain national 

parks and wilderness areas—where required measures to protect 

air quality are particularly stringent. See also 4 0 CFR 

§52.21(k). A complementary demonstration requirement appears in 

Section 165(d)(2)(C)(i) of the Act, which provides that in any 

case where the Federal Land Manager for a mandatory class I area 

files a notice alleging that emissions from the proposed facility 

may cause or contribute to a change in air quality in the area 

and identifying the potential adverse impact of such change, a 

permit shall not be issued unless the permit applicant 

demonstrates that the facility's emissions of particulate matter 

and sulfur dioxide (S02) will not cause or contribute to a 

violation of an increment in the class I area. 

The Petitioners claim that Old Dominion did not perform the 

required demonstration for the Shenandoah National Park (Park), 

which is a class I area, notwithstanding notification from the 

2-1 See Petition at paragraphs I.A.& B. and VI. ("Statement of 

Reasons for Southern Environmental Law Center, et al. Appeal of 

Old Dominion Electric Cooperative (Clover, VA) PSD Permit No. 

30867," dated June 3, 1991) (hereafter the "Petition"). 
P.5 

4 

Park's Federal Land Manager of the proposed facility's potential 

adverse impacts on air quality related values in the Park. -/ 

Petitioners contend that the State's failure to require this 

demonstration is particularly egregious because the State had 

received modeling results from another permit applicant which 

indicated that existing permits currently exceed the class I 

increment at the Park and that emissions from the Old Dominion 

facility and sources closer to the Park would result in a 

violation of the class I increment. According to Petitioners the 

failure of the State to require such a demonstration under the 

circumstances is reversible error. Specifically, because there 

is no dispute that Old Dominion did not submit a demonstration 

for the Park pursuant to either Section 165(a)(3) or Section 

165(d)(2)(C)(i), Petitioners argue that Old Dominion's permit 

application was not complete, and therefore the State erred in 

issuing the permit. 

The validity of Petitioners' argument rests entirely on 

their assertion that such a demonstration is required even though 

2-1 Petitioners assume that the Federal. Land Manager's September 

25, 1990 letter to Virginia constituted notice within the meaning 

of section 165(d)(2)(C)(i) of the Act. See petition at 9. This 

assumption appears to be erroneous. The September 25, 1990 

letter in pertinent part constituted elaboration and transmittal 

of a September 18, 1990 Federal Register notice in which the 

Federal Land Manager for the Park announced preliminary findings 

of adverse impact under section 165(d)(2)(C)(ii) of the Act. For 

this reason the Petitioners' claim that Old Dominion did not 

perform the demonstration required by section 165(d)(2)(C)(i) is 

not properly before me. Nevertheless, to the extent the 

discussion addressing Petitioners' claim under section 165(a)(3) 

of the Act also applies to Petitioners' claims under section 

165(d)(2)(C)(i), I have addressed the substance of these claims. 
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the proposed facility will be located approximately 135 

kilometers from the Park's nearest boundary. 

EPA guidance has not specified that the demonstration 

requirement applies regardless of how distant a class I area may 

be from the source in question. Thus, EPA has implicitly 

countenanced the view that, as a practical matter, pollution 

sources may be too distant from a specific area to have anything 

except an imperceptible or insignificant effect on the area in 

question. In other words, the mere possibility of pollution 

molecules being transported from a source to a class I area is 

not, by itself, sufficient reason to trigger the demonstration 

requirements of the Clean Air Act. 

In the case of the proposed Old Dominion facility, the State 

followed its policy of not requiring modeling of increment 

impacts for proposed facilities located more than 100 kilometers 

from the Park. -/ It also rejected the notion that the results 

from the other permit applicant were determinative of the pending 

applicant's impact on the class I area. -/ According-to 

Virginia, the policy it follows reflects its concern that the 

models used for this analysis overpredict pollutant 

$-1 It is the policy of the State "to require a Class I increment 

analysis for PSD sources proposing to locate within 100 

kilometers of any Class I area." Virginia's response to 

Petition, dated July 30, 1991, at 4. 

-/ Virginia indicated that the findings of the other permit 

applicant do not provide evidence that it clearly erred in 

failing to require the demonstration. According to Virginia, at 

the time ODEC's application was deemed complete there were no 

demonstrated exceedances of the class I increment in the Park. 
P.7 

6 

concentrations at long distances and that substantial questions 

exist about their accuracy when employed at distances greater 

than approximately 50 kilometers. In Virginia's view, therefore, 

when it requires analysis for distances up to 100 kilometers, it 

is providing an added measure of environmental protection beyond 

what is strictly justified by the limited accuracy of the models. 

Accordingly, it did not require modeling for the Park, which is 

more than 100 kilometers from the proposed facility. The State 

did, however, require analysis of potential increments impacts at 

the James River Face Wilderness (the Wilderness), which is 

located approximately 99 kilometers from the proposed facility. 

The analysis for the Wilderness demonstrated to the State's 

satisfaction that the class I increments would not be violated in 

this: area. Considering these findings for the Wilderness, which 

is located closer to the facility than the Park (and therefore 

potentially subject to even greater adverse impacts than the 

Park), and considering that EPA has not issued any final guidance 

that would contravene the State's, policy, &l Virginia did not 

&l Draft guidance released by EPA in October 1990 and 

distributed to the States recommends analysis beyond 100 

kilometers when there are potential impacts on a class I area. 

While this guidance has not yet become final, it reflects EPA's 

concern that increments analysis include class I areas when there 

are reasonable questions about a proposed facility's impacts on 

such areas. As a draft policy, however, it does not have the 

same weight as a binding Agency position and does not prohibit 

the States from adopting their own policies that are consistent 

with the Clean Air Act and applicable regulations. Nevertheless, 

EPA's draft policy reflects the Agency's latest thinking on when 

it is appropriate to require increment analyses for class I 

areas, and is based upon the availability and feasibility of. 

modeling tools for assessing such impacts. For this reason, 

Virginia should consider reexamining its current policy. 
P.8 

• ' * 

7 

clearly err in deeming Old Dominion's application complete even 

though Old Dominion did not supply a demonstration for the Park 

under Section 165(a)(3) of the Clean Air Act. Therefore, review 

of the permit for the reasons stated by Petitioners is not 

justified. U 

B. 

Findings of Adverse Impacts on Air Quality Related Values. -/ 

Section 165(d)(2)(C)(ii) of the Act provides that, notwithstanding that the emissions from a proposed facility do not cause or 

contribute to exceedances of the class I increment in an area, a 

permit shall not be issued in any case where the Federal Land 

Manager of a mandatory class I area demonstrates to the 

satisfaction of the State that the emissions from the facility 

-/ Although a Federal Land Manager's assertion of an adverse 

impact under Section 165(d)(2)(C)(i) triggers a duty on the part 

of the applicant to perform an increment analysis, no error 

occurs when the State subsequently determines that the Federal 

Land Manager's assertion lacks sufficient hard scientific data to 

sustain the charge of an adverse impact. Assuming, arguendo Csee 

note 3 supra), that the Federal Land Manager's demonstration for 

the Park under section 165(d)(2)(C)(ii) constituted notice under 

section 165(d)(2)(C)(i), such a determination was made in this 

instance. (See discussion in paragraph B. of the text.) 

Requiring the applicant to supply a separate demonstration under 

such circumstances, i.e., after the permit issuer has examined 

and rejected the merits of the Federal Land Manager's findings 

would serve no legitimate purpose. Cf. United States Postal 

Service, Board of Governors v. Aikens, 460 U.S. 711 (1983) (once 

the merits of a case are heard, it is error to focus on the 

procedural question of whether the plaintiff succeeded in 

establishing a prima facie case, rather than on the ultimate 

question of the merits). At most, the failure of the applicant 

to submit a demonstration in such circumstances constitutes 

harmless error. 

&l See generally Petition at paragraph II. 
P.9 

8 

will have an adverse impact on the air quality related values 

(including visibility) of the class I area. See also 4 0 CFR 

§52.21(p)(4). Petitioners claim that the State clearly erred in 

rejecting the adverse impact determinations of the Federal Land 

Managers for the Park and the Wilderness that Old Dominion would 

have an adverse impact on the air quality related values of their 

respective class I areas. I disagree. While the permit issuer 

must give reasonable consideration to a Federal Land Manager's 

assertion of an adverse impact, the final decision rests with the 

permitting authority. -/ See generally 50 Fed. Reg. 28544, 

28549 (July 12, 1985). Section 165(d)(2)(C)(ii) clearly states 

that a demonstration by a Federal Land Manager that a facility 

will have an adverse impact on the air quality related values of 

a class I area must be made to the "satisfaction of the State." 

—I For the reasons discussed below, the State did not commit 

clear error in rejecting the Federal Land Managers' assertions 

regarding the proposed facility's adverse effects on the Park or 

the Wilderness. 

-I This is not to suggest, however, that the permit issuer's 

discretion in rejecting a finding is unfettered. See generally 

50 Fed. Reg. 28544, 28549 (July 12, 1985). It merely signifies 

that, so long as it is not exercised in an arbitrary or 

capricious manner, the permit issuer's discretion takes 

precedence under the statute. 

—/ Similarly, EPA's implementing regulations provide that a 

permit shall not be issued when the permit issuer concurs with 

the Federal Land Manager's demonstration. See 4 0 CFR 

§52.21(p)(4). 
P.10 

9 

Adverse Impacts—The Park. ^ The Federal Land Manager's 

adverse impact determination for the Park is contained in a 

letter dated September 25, 1990, and in a December 19, 1990 

letter and supporting documents. The Federal Land Manager 

reasoned that since certain air quality related values, 

visibility primarily, are subject to deterioration in the Park, 

the addition of new sources of pollution (referring not just to 

the proposed Old Dominion facility, but also to that facility 

plus several other proposed sources scheduled for construction in 

Virginia over the next several years) will by necessity only 

exacerbate existing impaired conditions. Virginia concluded that 

the Federal Land Manager's determination was largely a 

qualitative analysis and did not reveal any significant link 

between the proposed source and air quality at the Park. 

Nevertheless, the State asked EPA for assistance in further . 

evaluating the Federal Land Manager's claim. 

The Federal Land Manager's claim of an adverse impact from 

the proposed Old Dominion facility largely hinges on the 

assumption that there is a demonstrable causal connection between 

the facility and the predicted adverse impact on the Park. 

However, the facts to support such a claim are not contained in 

the Federal Land Manager's determination, nor was the claim 

verifiable insofar as EPA was able to determine. The facts do 

show that air quality in the Park is adversely impacted by 

existing sources. However, in response to the State's request 

HI See Petition at paragraph II.A. 
P.11 

10 

for assistance, EPA conducted a preliminary modeling analysis 

("RELMAP") in an effort to assess the Federal Land Manager's 

adverse impact finding for the Park. See note 23 and 

accompanying text, infra. This analysis did not confirm the 

Federal Land Manager's finding. Based on the RELMAP analysis, 

EPA found that it could not conclude that Old Dominion would have 

an adverse impact on the Park, or the Wilderness. Virginia did 

not clearly err, then, when it issued the permit after it and EPA 

were unable to confirm the Federal Land Manager's assertions. 

Virginia ultimately rejected the findings of the Federal Land 

Manager on several grounds, concluding generally, however, that 

the findings were unsubstantiated and speculative. — / 

Finally, I note for the record that the Park's Federal Land 

Manager subsequently entered into an agreement with Old Dominion 

that provides for environmentally beneficial reductions in 

pollutant levels from the proposed facility and from levels of 

allowable pollutant emissions at an existing facility. — / The 

12-1 The Federal Land Manager for the Park also used the MPTER 

model to predict S02 concentrations, which were then converted to 

sulfates and used to estimate short-term (24-hour) impacts on 

visibility in the Park. The State evaluated and responded to the 

modeling results, finding them "clearly inadequate" for this 

purpose, tending to overstate impacts. Modeling cited by 

Petitioners and performed by Dr. Michael Williams is also highly 

likely to overstate short-term impacts. These analyses are 

contradicted by the analyses submitted by Old Dominion and EPA 

Region Ill's RELMAP analysis. It is not error for the State to 

determine that, in light of contradictory evidence, the MPTER 

model and Dr. Williams' analysis were not sufficiently 

convincing. 

—/ The highlights of the agreement are described in the State's 

response to the Petition. See Virginia Response, dated July 30, 

1991 (Appendix, Document No. 40). 
P.12 

11 

latter reductions are termed "offsets." ^-1 As a result, the 

Federal Land Manager for the Park has noted in the agreement that 

based on the performance of the terms therein it withdraws its 

adverse impact determination, ^-l 

Adverse Impacts—The Wilderness, l&l Petitioners claim 

the State erred in rejecting the Federal Land Manager's findings 

of adverse impact for the Wilderness. While the Federal Land 

Manager's analysis supporting its finding on the Wilderness 

presents a somewhat stronger technical case than was presented 

for the Park, the State's decision to issue the permit 

nevertheless did not constitute clear error. The determination 

that Old Dominion would have an adverse impact on air quality 

—/ :The offsets consist of reductions in S02 and NO^ emissions 

from Virginia Power's Mt. Storm (West Virginia) facility in 

amounts greater than the actual emissions of these pollutants 

projected for the proposed Old Dominion facility. See Virginia 

Response, dated July 30, 1991 (Appendix, Document No. 40). 

—I The State argues that the Federal Land Manager's adverse 

impact determination for the Park was absolutely withdrawn in the 

agreement and that the issues raised by this determination have 

become moot by the withdrawal. Petitioners respond by pointing 

out that the agreement is executory and argue that the Federal 

Land Manager's withdrawal is conditioned upon complete execution 

of the terms of the terms of the agreement. Petitioners also 

question the legality of the withdrawal, alleging that if in 

entering into the agreement the Federal Land Manager withdrew its 

adverse impact finding then the form of such withdrawal 

contravenes applicable procedural requirements. For purposes of 

deciding whether to exercise my discretionary powers of review of 

the State's permit determination, I do not find it necessary to 

resolve the exact legal status of the adverse impact finding. 

For my purposes, the largely qualitative nature of the Federal 

Land Manager's adverse impact finding and the failure of the 

subsequent analysis conducted by EPA to corroborate that finding 

lead me to conclude that the State did not commit clear error in 

issuing the permit. 

li/ Se e petition at II.A. 
P.13 

12 

related values at the Wilderness was based on the Federal Land 

Manager's findings of increases in sulfur deposition and 

acidification. HI See December 14, 1990 letter from Joy E. 

Berg, Forest Supervisor, to Wallace Davis of the State. The 

single source modeling method used by the Federal Land Manager, 

which projected a 2% to 4% increase in sulfur deposition, appears 

on its face to be reasonable, but the State noted several reasons 

why the method may have significantly overestimated impacts, ^l 

See Board Book Response at Section V.B. As discussed further 

below, EPA's regional RELMAP modeling supports the State's view 

regarding overestimation: it suggests an increase in deposition 

only l/10th as large as the Federal Land Manager's estimate for 

the Wilderness. In addition, as also discussed below (paragraph 

C ), the Federal Land Manager for the Lye Brook Wilderness used a 

similar analysis in estimating impacts of the proposed Halfmoon 

Cogeneration project and significant questions about its accuracy 

there have been raised. These questions about the accuracy of 

the Federal Land Managers' findings .suggest that the State acted 

reasonably in exercising its discretion under the Act to reject 

the Federal Land Manager's findings. See CAA §165(d)(2)(C)(ii) 

—/ The Federal Land Manager for the Wilderness did not claim 

that Old Dominion would have an adverse impact on visibility. 

—/ The original letter from the Federal Land Manager indicates 

the analysis was based on the annual S02 impact predicted by Old 

Dominion's modeling, but does not provide details of the 

calculations. Those details are contained in a separate paper 

that was reviewed by the State. See generally Board Book 

Response at Section V.B. The State did not receive detailed 

analysis from the Federal Land Manager until after the close of 

the public comment period. 
P.14 

13 

and 40 CFR §52.21(p)(4). Moreover, Petitioners have not 

persuaded me that there is any other evidence in the record to 

support its contention. For these reasons, no reviewable error 

stems from the State's rejection of the adverse impact 

determination for the Wilderness. 

Petitioners' "Rational Basis" Argument. HI Petitioners 

argue that to have a rational basis for rejecting the Federal 

Land Managers' analyses of the impacts of the proposed facility 

on the Park and the Wilderness, the State must arrive at its 

determination after conducting its own analysis of the impacts 

alleged by the Federal Land Managers. Petitioners describe 

several facets of the State's legal and policy conclusions which 

lead them to conclude that the State never analyzed the adverse 

impacts alleged by the Federal Land Managers, thus signifying to 

Petitioners that the State's actions lack a rational basis. 

While it is true, as Petitioners assert, that the State 

appears at various points to surrender responsibility for 

independently analyzing the Federal Land Managers' adverse impact 

findings, 22.1 a just reading of the State's response to the 

HI see Petition at paragraphs II.B. and II.C. (l), (2), (3), & 

(5). 

221 For example, the State relied in part on the absence of 

guidance on de minimis levels for class I area adverse impacts as 

a basis for its rejection of the Federal Land Manager's adverse 

impact determination for the Wilderness. See "Board Book 

Response" at Section V.B. National guidance on de minimis 

impacts for class I air quality related values is in no way a 

prerequisite to a reasonable determination by a permit-issuing 

authority that the Federal Land Manager has demonstrated a 

proposed source will have adverse impacts. However, in this 

(continued...) 
P.15 

14 

findings by the Federal Land Managers reveals that the State 

rejected the findings of adverse impact because it either was 

unable to verify the assertions made by the Federal Land Managers 

or it believed that their analyses tended to overstate impacts. 

See, e.g.. Board Book Response at Section V.B. (Virginia 

identifies several reasons why the Federal Land Manager's 

analysis of adverse impacts for the Wilderness may have 

overstated impacts). These realities overshadow the criticisms 

that might otherwise be directed at some of the State's specific 

arguments for rejecting the Federal Land Managers' findings. For 

example, as to the Park, the Federal Land Manager's reasoning, as 

noted previously, relies in substantial part on the fact that 

visibility and other air quality related values in the Park have 

deteriorated, and concludes therefrom that the addition of other 

sources of pollution will inevitably cause further damage to the 

Park. The problem with the Federal Land Manager's claim of an 

adverse impact on the Park from the proposed Old Dominion 

facility is that it hinges on an unproven assumption, i.e., that 

any emissions from the facility will have an adverse impact on 

the Park. The truth of this assertion is not self-evident. 

Moreover, the facts to support such a claim are not contained in 

22.1 (... continued) 

instance any State error regarding de minimis levels may be 

viewed as harmless. As noted elsewhere, while the Federal Land 

Manager's method for determining adverse impacts at the 

Wilderness was reasonable, Virginia explained that it may have 

overstated the impacts. It was not clear error for the State to 

reject the Federal Land Manager's finding for this reason and the 

reasons noted previously. 
P.16 

15 

the Federal Land Manager's determination, nor were any uncovered 

in the analysis conducted by EPA. Among other things, the 

Federal Land Manager did not provide any quantitative measures of 

the impact of these sources (other than the MPTER modeling 

properly rejected by the State (see supra note 12)), and did not 

attempt to isolate the Old Dominion facility from the collective 

impact that supposedly would result from the construction of the 

other facilities in Virginia over the next several years. Under 

the circumstances, since the logic behind the Federal Land 

Manager's conclusions is not especially compelling, and since 

there is no verification of the conclusions through quantitative 

analysis, it was not unreasonable for the State to reject those 

conclusions. Petitioners are unreasonable in arguing, as they 

do, that in the absence of quantifiable tools to measure and 

identify the source of an adverse impact on a class I area, it 

was incumbent upon the permit issuer to refute the Federal Land 

Manager's "qualitative analysis"—as Petitioners refer to it—or 

accept it as proven fact. 211 &s the record stands, the 

Federal Land Manager's so-called "qualitative analysis" could 

211 The course of Petitioners' argument runs as follows: 

EPA has not approved models for assessing episodic impacts 

of proposed sources on the Class I areas. Given that the 

quantitative tools are not available, the FLM must properly 

present a qualitative analysis. Unless the State can 

provide a rational basis for refuting the qualitative 

analysis, it must accept the FLMs' findings. The State has 

provided no rational basis for a finding contrary to the 

FLMs' expert and well reasoned qualitative assessments. 

Petition at 22. 
P.17 

16 

just as easily be termed an "unverified supposition" insofar as 

it purports to attribute a causal connection between the proposed 

facility and adverse impacts on air quality related values. The 

record demonstrates that neither the State nor EPA Region III 211 

has been able, despite reasonable efforts, to confirm the 

supposition with reliable, scientific studies or data. Likewise, 

the State declined to accept the supposition based upon the 

Federal Land Manager's "qualitative analysis." No error results 

from rejecting the findings of the Federal Land Manager under 

these circumstances. 

Cumulative Impacts. 211 Petitioners assert that the State 

erred when it contended that the Federal Land Manager for the 

Park must demonstrate that emissions from each new source must by 

itself have an adverse impact on air quality related values, 

including visibility. Although Petitioners recognize that 

Federal Land Managers must assess whether each source will 

211 Petitioners acknowledge that the concerted actions of EPA 

and the State bear on the determination of whether or not to 

sustain a finding of an adverse impact. Specifically, 

Petitioners assert, citing the Federal Register. 50 Fed. Reg. 

28549, that the Federal Land Manager and the reviewing authority 

(meaning the State and the Environmental Protection Agency) 

"share responsibility" to determine whether an adverse impact 

will result from a proposed facility. As previously noted in the 

text, supra. the Environmental Protection Agency participated in 

that shared responsibility by, inter alia, responding to the 

State's request for assistance for technical guidance. In 

recognition of that responsibility, I have taken the results of 

the Agency's response to the State's request into account in 

evaluating whether or not to review the State's permit 

determination. (See discussion above regarding the RELMAP 

modeling analysis.) 

211 See Petition at paragraph II.C.(4). 
P.18 

17 

contribute to an adverse impact, Petitioners take the position 

that the Federal Land Managers can meet their burden under 

Section 165(d)(2)(C)(ii) by merely showing that proposed sources 

collectively will adversely impact class I areas. 2AI j 

disagree. PSD permit determinations are made individually under 

the Act on a case-by-case basis, and the State is not required to 

withhold or deny a permit application for a qualified source 

based upon the supposition that there might be an adverse impact 

on visibility in an area if other pending applications are 

subsequently approved. 

While it may be prudent in such circumstances for a State to 

consider the collective potential impacts on visibility from all 

prospective sources that have not yet received final permits, 

nothing cited by Petitioners requires this type of planning. 

Under existing EPA policy, the State is not required to evaluate 

the collective impact of those prospective sources that have not 

yet received permits. While EPA's policy may result in 

situations where applicants at the end of a permitting queue face 

denial of their applications because an area's visibility "growth 

24-1 Petitioners note that EPA has previously concluded that "a 

source's impact on visibility must be considered in the context 

of background visibility impacts caused by both existing and 

previously permitted, but not yet built sources." See Petition 

at 24 (citing 50 Fed. Reg. at 28548 (July 12, 1985)). Petitioners are correct that under EPA rules, in determining whether a 

proposed source will cause an adverse impact on visibility, the 

cumulative visibility impacts of the pending PSD applicant and 

all PSD-permitted sources, including those not yet constructed, 

must be assessed against background visibility conditions. 

Petitioners evidently seek extension of this policy by suggesting 

that all proposed sources having applied for permits should be 

included in the analysis. 
P.19 

18 

margin" has been depleted (by those at the front of the queue), 

that possibility is not dispositive of the issue raised by 

Petitioners. It is enough to note that the State's policy of not 

considering prospective but as yet unpermitted sources is 

consistent with EPA's present cumulative impact policy for 

visibility. EPA's policy contains an adequate safeguard against 

impermissible encroachments on visibility in class I areas. 

Specifically, by requiring every permitted but not yet 

constructed source to be taken into consideration, EPA's policy 

considers the potential adverse impacts of every new source 

capable of causing an adverse impact on the area in question. — / 

It also obligates the State to refrain from issuing permits 

whenever the addition of one more source in conjunction with all 

previously permitted sources (including those not constructed) 

would have the effect of causing an adverse impact on visibility 

in the class I area. In any event, there is no compelling need 

to speculate further on the potential impact of the unpermitted 

sources that Petitioners have identified as cause for concern. 

It suffices to note that the RELMAP modeling analysis conducted 

by EPA Region III did account for visibility impacts of all 

prospective sources (permitted or not), and could not confirm the 

presence of an adverse impact from that cumulative growth. 

—/ Whether the relevant Federal Land Manager or the source 

bears the burden of demonstrating the impact would depend upon 

whether the source causes or contributes to an exceedance of the 

class I increment. See 40 CFR §52.21(p)(4)-(5). 
P.20 

19 

RELMAP Modeling Analvsis of Adverse Impacts. —I <phe 

State asked EPA Region III for technical assistance in assessing 

the findings of the Federal Land Managers for the Park and the 

Wilderness. The Region responded by performing the RELMAP 

analysis, the results of which it formally reported to the State 

on January 25, 1991. 211 The Region noted, inter alia, that 

the Federal Land Manager for the Park did not provide a technical 

analysis for its findings in either the Federal Register notice 

announcing its preliminary findings or the accompanying Technical 

Support Document; and that the reasoning underlying the findings 

was basically that visibility is impaired already and therefore 

any additional emissions from new sources would cause an adverse 

impact. EPA attempted to quantify the impacts in order to 

provide a reasonable basis for evaluating the findings of the 

Federal Land Managers. The Region concluded that its technical 

assessment using the RELMAP model did not substantiate the 

contention that emissions from the proposed Old Dominion facility 

would cause adverse impacts on the visibility values and aquatic 

resources of the Park or the Wilderness. 23.1 _VK Region III 

readily acknowledged in its letter to Virginia that the 

assessment it performed had deficiencies. In recognition of the 

2&I See Petition at paragraph II.D. 

211 Letter from Thomas J. Maslany, Director, Air, Radiation & 

Toxics Division, EPA Region III, to Wallace Davis, Executive 

Director, Virginia Department of Air Pollution Control, dated 

January 25, 1991 (Administrative Record #53). 

2&I id. at 4. 
P.21 

20 

deficiencies, it concluded by noting that, although no adverse 

impact was found, "[w]e do reserve the opportunity to revisit 

these issues as additional analytical tools become available for 

use in the future." On appeal, the Petitioners argue that these 

deficiencies render the assessment flawed, for they "[do] not 

support a conclusion of no adverse impact * * *." 21/ 

This argument by Petitioners does not persuade me to review 

the State's permit determination. Under the circumstances 

presented here I do not read the Act as imposing a burden on the 

permit issuer to prove that the proposed facility will not have 

an adverse impact on the two class I areas. Neither EPA nor 

Virginia is contending that Region Ill's technical assessment 

proves or is capable of proving such an impact will not occur. 

Rather, the assessment EPA performed represents a measured, 

analytical response to the Federal Land Managers' findings, using 

available tools, and is by comparison more technically rigorous 

and probative than the analyses they used. It showed that the 

allegations of the Federal Land Managers could not be 

substantiated by the analysis EPA conducted. Therefore, until 

such time as more sophisticated tools are applied to measure the 

impact of sources under the circumstances presented, the 

assessment performed by EPA represents the best available 

evidence in the record of the facility's impact on the two areas. 

The fact that the assessment may be inconclusive does not make it 

clear error for Virginia to have granted the Old Dominion permit. 

211 see Petition at 28, 
P.22 

21 

As the delegated permit issuer, the State was authorized to 

reject the Federal Land Managers' findings after concluding on 

reasonable grounds, as it did here, that they could not be 

substantiated. &l 

c. 

Consistency Between Regions. — / The Petitioners argue 

that there are parallels between this proceeding and a PSD permit 

proceeding in EPA Region II, involving^the Halfmoon Cogeneration 

'i 

Project, where the Region provisionally accepted findings of 

adverse impact on the Lye Brook Wilderness by the Federal Land 

Manager for that area. However, Region II is reconsidering its 

initial acceptance of the findings as a result of subsequent 

analyses performed by the .Halfmoon applicant, which tend to show, 

inter alia, lower long-term S02 levels and correspondingly lower 

deposition than originally indicated. The initial estimates may 

have been significantly overstated and therefore the issue is 

being revisited. Accordingly, I am not persuaded that there is 

such a fundamental split ih approach between the two permit 

—/ Petitioners have criticized the RELMAP analysis as being 

significantly limited by its regional scale and its inability to 

capture episodic impacts. The RELMAP results were based on large 

grid sizes and were monthly averages. The monthly averages 

generally are not a problem for assessing sulfate deposition 

because the effects of concern are usually not of an episodic 

nature. However, the grid size is a limitation for the 

Wilderness. Overall, however, the analysis constituted a 

reasonable assessment of the Federal Land Manager's findings 

regarding adverse impacts from sulfur deposition. 

Ql See Petition at paragraph II.E. 
P.23 

22 

issuers to warrant review for the purpose of achieving national 

uniformity. 

D. 

Quantity of N0X Emissions. 22.1 The Petitioners raise 

concerns about the adequacy of consideration given by the State 

to the annual amount of N0X emissions from the proposed facility. 

The Petitioners' concerns manifest themselves in numerous 

arguments wherein the Petitioners basically contend that 

additional analyses should have, but were not, performed by the 

applicant (e.g., relating to ozone formation or nitrification 

impacts upon the Chesapeake Bay). The State has adequately 

responded to these arguments by demonstrating that the 

submissions it required of the applicant fully satisfy all of the 

requirements set forth in EPA regulations and guidelines. — / 

It points out that modeling of N0X emissions for impact on ozone 

formation was not required because there is currently no 

acceptable EPA-approved method for assessing ozone impacts 

attributable to individual point sources of N0X emissions. — / 

The State further points out that the proposed facility is 

22.1 Id. at paragraph III. 

—/ EPA does not currently require N0X emissions to be addressed 

under the existing PSD program when an ozone violation is 

identified. However, EPA is considering reassessing that policy 

in light of section 182(f) of the amended Act. 

—/ Old Dominion did supply modeling showing to the State's 

satisfaction that N0X emissions would comply with class I and 

class II increments and NAAQS limitations. 
23 

located quite far from the Chesapeake Bay (approximately 220 km). 

Also, the Chesapeake Bay is not a class I area. For all of these 

reasons, the State did not require Old Dominion to perform any 

impact analysis for the Bay. The State also notes that the 

analyses of impacts of the proposed facility on forest and 

vegetation areas was also done in accordance with EPA 

requirements. The Petitioners have not persuaded me that the 

State has committed any reviewable error as alleged. 

E. 

BACT Analysis—Consideration of Environmental Impacts. —I 

The Petitioners contend that Virginia did not give adequate 

attention to environmental impacts in its analysis of best 

available control technology (BACT) for the facility's NOx 

emissions. The State responds by suggesting that the 

Petitioners' discussion appears to confuse the BACT determination 

with the separate issue of the facility's compliance with 

National Ambient Air Quality Standards (NAAQS) or increments. I 

am inclined to agree with the State. While collateral 

environmental impacts are relevant to the BACT determination, 

their relevance is generally couched in terms of discussing which 

available technology, among several, produces less adverse 

collateral effects, and, if it does, whether that justifies its 

utilization even if the technology is otherwise less stringent. 

See generally, Columbia Gulf Transmission Company. PSD Appeal No. 

211 See Petition at paragraph IV. 
P.25 

24 

88-11, at 7 (June 21, 1989) ("For example, if the most effective 

technology would impose exceptional demands on local water 

resources, so that use of the technology would have adverse 

impacts on the environment, then, under those circumstances, the 

applicant would have a sound basis for foregoing use of the most 

effective technology in favor of some less water-intensive 

technology."); North County Resource Recovery Associates, PSD 

Appeal No. 85-2 (Remand, June 3, 1986) (environmental impact of 

pollutants not regulated under the Clean Air Act may necessitate 

a more stringent emission limit for regulated pollutants 

undergoing BACT review). The Petitioners' discussion of 

collateral environmental impacts is not framed in this manner and 

makes no specific comparison of alternative technologies. 

Therefore, consideration of this issue as presented by the 

Petitioners is rejected as lacking in specificity and clarity. 

—I in any event, Virginia did not clearly err in deciding not 

to assess environmental impacts in conducting the BACT analysis 

in the manner put forth by Petitioners. 

Clean Fuel Alternative. 211 Petitioners allege that the 

State unlawfully failed to consider natural gas as an alternative 

fuel for the proposed facility, contrary to the dictates of 

—/ "[A]n objection to a permit term or condition must be 

articulated with the requisite specificity, clarity and support 

to enable meaningful consideration." In re Resource Technology 

Services, Inc., RCRA Appeal No. 83-1, at 2, n.2 (September 17, 

1983), citing Vermont Yankee Nuclear Power Corp. v. NRDC, 435 

U.S. 519, 553-554 (1978). 

—/ see Petition at paragraph IV.B. 
P.26 

25 

Section 403(d) of the Clean Air Act Amendments of 1990, amending 

the definition of BACT in Section 169(3) of the Act. The State 

responds to this contention by pointing out that it can impose 

alternative fuel requirements on an applicant if the applicant 

cannot meet all federal and state air emission limitations. In 

this case, however, the applicant met all of those limits, and 

since the modeling within the relevant impact areas has 

demonstrated that the NAAQS will not be violated, the State did 

not require the use of natural gas. The State did not feel it 

was authorized to "redefine the source," —/ i.e., to alter the 

fundamental scope of the project, since Old Dominion had 

previously considered the alternative of using gas turbines to 

power the facility, but ultimately rejected that approach because 

of higher capital cost, low unit efficiency, and the 

unavailability of natural gas in the Clover area. No clear error 

is apparent in the State's handling of this matter, although EPA 

does not view the new statutory language as being limited to 

instances where an applicable NAAQS or increment is at risk. 

Rather, EPA construes the 1990 Amendments as conferring 

discretion on the permit issuer to consider clean fuels other 

than those proposed by the permit applicant. See Letter from 

William G. Rosenberg, Assistant Administrator for Air and 

211 Traditionally, EPA does not require a PSD applicant to 

change the fundamental scope of its project. See, e.g.f Spokane 

Regional Waste-to-Energy Facility, PSD Appeal No. 88-12 (EPA June 

9, 1989) (Order Denying Review); Pennsauken Resource Recovery 

Facility, PSD Appeal No. 88-8 at 11 (EPA November 10, 1988) 

(Order Denying Review). 
P.27 

26 

Radiation, EPA, to Henry A. Waxman, Chairman, Subcommittee on 

Health and Environment, House Committee on Energy and Commence 

(Oct. 17, 1990) (enclosure at 4). 211 The State exercised its 

discretion in accord with EPA's reading of the Amendments. 

Selective Catalytic Reduction (SCR). — / Petitioners 

argue that the State failed to give adequate consideration to SCR 

as an alternative control technology for N0X emissions from the 

proposed facility. It argues that the technology settled upon by 

the State is roughly one-half as effective as SCR. In support, 

the Petitioners point to comments in the record by EPA 

Region III that make reference to numerous instances of SCR use 

for coal-fired power plants in Japan and Germany and of one 

instance in the United States, in a proposed coal-fired 

cogeneration industrial boiler in New Jersey, where a permit has 

been issued requiring that it be employed. The State counters by 

asserting that it is not required to consider foreign 

applications of SCR, citing Mecklenburg Cogeneration Limited 

Partnership, PSD Appeal No. 90-7 (Order Denying Review, December 

21, 1990) (noting that SCR had not been employed domestically 

with a facility and fuel source the same as the applicant's), and 

second, that the New Jersey permit may be disregarded because the 

project is not yet operational and, thus, the use of SCR has not 

been demonstrated. 

211 However, the BACT analysis should include consideration of 

cleaner forms of the fuel proposed by the source. 

4-2/ See Petition at paragraph IV.C. 
P.28 

27 

The SCR issue Petitioners raise is altogether familiar by 

reason of the Mecklenburg decision. —' On the one hand it is 

immediately clear that the addition of the New Jersey facility to 

the SCR rolls is a new and noteworthy event; on the other hand it 

is by no means immediately clear that the event renders 

Virginia's decision clearly erroneous. In the one year since 

Mecklenburg was decided, there have been instances of acceptance 

of SCR for large scale facilities of the type proposed by the 

permit applicant, but not so as to render clearly erroneous the 

rejection of SCR on technical grounds, at least at the time the 

State issued the Old Dominion permit. In this regard, it is 

relevant that the New Jersey plant had not yet employed SCR at 

the time of the State's permitting decision in this case. The 

actual use of SCR in coal-fired boilers was still limited to 

foreign, primarily European, facilities. Both Old Dominion and 

the State distinguished those facilities from Old Dominion's by 

—' As in Mecklenburg, it is undisputed that the State analyzed 

the permit application by employing a systematic, rational method 

of analyzing BACT for the facility. See, e.g., Virginia Response 

at 22. Under the methodology, all of the "available" control 

technologies are ranked in order of stringency, and the most 

stringent control technology is evaluated first. If the permit 

applicant does not intend to use that technology, it demonstrates 

that the technology would be technically infeasible or justifies 

rejection based on consideration of energy, environmental or 

economic impacts, in which case the next most stringent control 

alternative is evaluated as BACT, and so forth. See, e.g., 

Mecklenburg at 3-4. Also as in Mecklenburg, a fair reading of 

the record demonstrates that the necessary steps to the analysis 

were adequately followed in this case. Specifically, the State 

addressed SCR as an available technology and considered it in 

detail before rejecting it on grounds of technical infeasibility. 

That analysis included consideration of the New Jersey facility, 

which was permitted just prior to the State's decision in this 

case. 
P.29 

28 

pointing to potentially significant differences in coal type 

(particularly, trace element content) and boiler design that may 

adversely affect catalyst life and operating characteristics. 

Although these differences apparently were not closely 

scrutinized by the State, the record also does not conclusively 

demonstrate that the State should have required SCR in this 

instance. As noted at the beginning of this Order, the 

regulations governing appeals of permit determinations 

contemplate that the permit issuer—in this case the State—shall 

make the permit determination, and that review by the 

Administrator shall be only sparingly exercised. Even though EPA 

Region III, for example, might well have arrived at a different 

determination had it been the permit issuer of record, the 

Petitioners have not persuaded me that the State's choice 

represents clear error, because the evidence "for" and "against" 

SCR was (at the time of permit issuance) in such close balance. 

Differences of opinion in such circumstances do not necessarily 

translate into error by one and correctness by the other; rather, 

they can easily reflect genuine differences of opinion—i.e., 

differences best left for resolution to the informed discretion 

of the permit issuer. Consequently, I decline to review the 

State's determination not to require SCR for the Old Dominion 

facility. However, as more information comes to light (for 

example, when the New Jersey facility comes on line or other 

similar facilities are permitted for SCR), any future claims of 

technological or economic infeasibility by permit applicants (or 
P.30 

29 

permit issuers) will inevitably be subject to greater scrutiny, 

and to be sustainable, the claims will have to be accompanied by 

a detailed, case-specific analysis of all relevant factors. 

BACT Analvsis—Timing Considerations. —/ The Petitioners 

claim that "the BACT analysis for the [Old Dominion] plant is 

contrary to the law and regulations because the decision was 

effectively made prior to the public involvement process and was 

not made on a case-specific basis." Petition at 58. This 

allegation does not state any basis for concluding that the State 

erred. It is essentially irrelevant that, as Petitioners allege, 

the State may have held a fixed view of how the BACT 

determination should be made during the period preceding the 

public comment process. Error would only ensue if it were 

alleged and shown that the State thereafter refused to conduct a 

meaningful evaluation of the public's comments. The Petitioners 

make no such allegation and have not shown any instance in which 

there is substantial reason to believe that the State did not 

give full and fair consideration to public comment. Accordingly, 

review is not warranted; Petitioners have not shown or alleged 

any error. 

F. 

Petitioners assert that the permit should not issue until 

EPA has reviewed and revised the long-term visibility strategy 

&2.I Id. at paragraph IV.D. 
P.31 

30 

for protecting the Park and the Wilderness. 42/ Matters such 

as these, which relate to adoption of a long-term strategy to 

prevent visibility impairment under Section 169A of the Clean Air 

Act, are beyond the scope of this permit proceeding under Section 

165 the Act. EPA has previously determined that the visibility 

provisions for new sources as implemented through the PSD program 

constitute a fully adequate long-term strategy to prevent future 

impairment of visibility from new sources. See 52 Fed. Reg. 

45135, 7807-7808 (1987). By raising the long-term strategy as an 

issue, Petitioners are attempting to use this proceeding to mount 

an otherwise impermissible collateral attack on EPA's 

implementation of Section 169A. This is the wrong forum in which 

to maintain such an attack; accordingly, review of this issue 

will not be entertained. 

G. 

Additional Public Comment. 41/ EPA Region III commented 

on the draft permit and criticized aspects of Old Dominion's 

modeling as it related to increment consumption for the 

Wilderness. As a result, certain assumptions in the modeling 

were changed and Old Dominion agreed to tighten its emission 

limits so that no increment violation would be shown. The State 

revised the permit accordingly and issued it in final form 

without soliciting further comment from the public. Although the 

—/ Jd. at paragraph V. 

44/ id. at paragraph VII. 
P.32 

31 

revised permit calls for reduced S02 emissions, Petitioners argue 

that the State or the Administrator should solicit further 

comment on the revised modeling. In my opinion no further 

comment is necessary. First, Petitioners do not allege in their 

Petition that the State's failure to solicit additional comment 

constituted clear error or otherwise met the criteria for 

reviewing a permit determination under 40 CFR §124.19. See 

Petition at paragraph VII. Second, even if Petitioners had made 

such an allegation, I would decline the request because I do not 

find that Virginia clearly erred in deciding not to reopen the 

comment period in this case. 

The decision by the permit issuer to reopen the public 

comment period is discretionary, as is clear from the plain terms 

of the regulation that authorizes a reopening of the comment 

period by the permit issuer. See 40 CFR §124.14(b) (the permit 

issuer "may" reopen the comment period if it appears that 

substantial new questions were raised during the public comment 

period). There is no indication the State abused its discretion 

by not reopening the comment period in this case. 

The record reveals that during the public comment period, 

EPA Region III objected to the input of certain assumed values in 

Old Dominion's increment modeling for the Wilderness. Although 

Old Dominion believed the assumed values to be conservative, it 

accepted Region Ill's request to substitute actual values 

instead. The resulting analysis indicated the potential, under 

certain conditions, for increment violations in the Wilderness 
P.33 

32 

unless the draft permit was modified somewhat. Old Dominion 

obliged by agreeing to a tightening of the permit's S02 emission 

limits so that there would be no increment violation. 

Petitioners believe the modified permit and revised modeling 

should be subjected to an additional period of public comment. 

Virginia disagrees, arguing that the initial modeling was 

adequate, that the commenter—EPA Region III—is satisfied with 

the response by Old Dominion and the State, and that in any event 

no further public comment is required by the regulations. 

While there may be times when a revised permit differs so 

greatly from the draft version that additional public comment is 

required (the discretionary wording of 40 CFR §124.14(b) 

notwithstanding), this is not one of those instances. The 

increment modeling underlying the S02 emissions in the draft 

permit was properly subjected to public comment. Region Ill's 

concerns with the modeling were addressed by the permit applicant 

in a manner that satisfies Region III, and it is self-evident 

that Petitioners are in no position to oppose the decision to 

tighten the permit's S02 emissions. Petitioners are not worse 

off with the revision than without it. Moreover, there is no 

reason to believe that tightening the emissions limitation is 

likely to result in unanticipated adverse environmental 

consequences in comparison with retention of the previous, less 

stringent S02 emissions limitation. The revised permit by all 

accounts is a logical outgrowth of the notice and comment process 

and all commenters have had a fair and reasonable opportunity to 
P.34 

33 

present their views on the permit. To require further comment in 

the face of Old Dominion and Virginia's responsible actions might 

discourage substantive responses to public comments in the 

future, as well as introduce additional delay to the permit 

proceeding. 

Conclusion 

For the reasons stated above, it is my conclusion that 

review of the State's permit determination is not warranted. It 

meets all necessary requirements of federal law. Therefore, the 

petition for review is denied. In accordance with 4 0 CFR 

§124.19(f)(2), the Regional Administrator of EPA Region III or 

his delegatee shall "promptly" publish notice of this final 

action in the Federal Register. 

So ordered. —/ 

Dated: 3L1111>-

41/ Matters raised by Petitioners but not specifically addressed 

in this Order were not deemed critical to deciding whether 

discretionary review of the permit determination should be 

exercised. Accordingly, such matters are also rejected as 

grounds for reviewing the permit determination. 
P.35 

,./.' 1 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Order Denying 

Review in the matter of Old Dominion Electric Cooperative, 

Clover, Virginia, PSD Appeal No. 91-39, were sent to the 

following persons by First Class Mail, Postage Prepaid: 

David W. Carr, Jr. 

Southern Environmental Law Center 

201 West Main Street, Suite 14 

Charlottesville, VA 22901 

John S. Seitz, Director 

Office of Air Quality Planning 

& Standards 

U.S. EPA, Region III 

841 Chestnut Building 

Philadelphia, PA 19107 

Charles A. Partizia 

Paul, Hastings, Janofsky & Walker 

1050 Connecticut Avenue, NW 

Twelfth Floor 

Washington, DC 20036 

Wallace N. Davis 

Executive Director 

Commonwealth of Virginia 

Dep't of Air pollution 

Control 

9th Street Office BIdg. 

Room 801 

P. 0. Box 10089 

Richmond, VA 23240 

Bessie Hammiel 

Hearing Clerk 

A-310 Room 3708 

Dated: JAN 2 9 1992 

Brenda H. Selden 

Legal Staff Specialist