BEFORE THE ADMINISTRATOR


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY


IN THE MATTER OF )


ORANGE RECYCLING AND ETHANOL ) ORDER RESPONDING TO


PRODUCTION FACILITY, PENCOR- ) PETITIONERS’ REQUEST THAT


MASADA OXYNOL, LLC ) THE ADMINISTRATOR OBJECT 


) TO ISSUANCE OF A 

Permit ID: 3-3309-00101/00003 ) STATE OPERATING PERMIT 

Facility NYSDEC ID: 3330900101 ) 

) 

Issued by the New York State ) 

Department of Environmental Conservation ) Petition No.: II-2001-05 

) 

____________________________________) 

ORDER DENYING PETITIONS FOR OBJECTION TO PERMIT 

The New York State Department of Environmental Conservation, Region 3 (NYSDEC) 

issued a modified state operating permit to Pencor-Masada Oxynol, LLC (Masada1

) on October 

1, 2001, incorporating changes made pursuant to the Order of the Environmental Protection 

Agency (EPA) Administrator, dated May 2, 2001 (May 2001 Order). See 66 FR 30904, June 8, 

2001.2 This Order was in response to petitions received regarding the initial permit issued to 

authorize construction and operation of the Orange Recycling and Ethanol Production Facility in 

Middletown, NY. The modified Masada permit was issued pursuant to title V of the Clean Air 

Act (CAA or the Act), 42 U.S.C. §§ 7661-7661f, CAA §§ 501-507, the federal implementing 

regulations, 40 CFR Part 70, and the New York State permitting regulations. 

In October and November 2001, the EPA received four petitions from 14 different 

petitioners, requesting that EPA object to the issuance of the modified Masada permit. 

Specifically, we received separate petitions from Jeanette Nebus, Robert C. LaFleur, president of 

Spectra Environmental Group, Inc. (Spectra), and Deborah Glover. We also received a fourth 

petition with 11 signatories: Talkini Alves, Vidal Milland, Kristine Hannon, Bridget Coppola, 

Nicole Young, Kathleen House, Campbell House, Susan Cohen, Debbie Carlisle, Roberta 

Constantino, and Elizabeth Collard. 

Under section 505(b)(1) of the Act, EPA may object to the issuance of a permit on its 

1 Pencor-Masada Oxynol, LLC is the corporate owner of the Orange Recycling and Ethanol 

Production Facility to be built in Middletown, New York. In the interests of clarity, this Order uses the 

term “Masada” to encompass both the corporate owner and the Middletown facility at issue here. The 

phrase “the Masada permit” refers to the permit issued by NYSDEC for the Middletown facility. 

2 The full text of the Administrator’s May 2001 Order is available at 

http://www.epa.gov/region07/program s/artd/air/title5/petitiondb/petitions/masada_decision2000 .pdf. 

1 
own initiative if the Administrator finds that it is “not in compliance with the applicable 

requirements of the [Act], including the requirements of an applicable [state] implementation 

plan.” See also 40 CFR 70.8(c). The Act and EPA’s implementing regulations provide that, if 

the Administrator does not object in writing, “any person” may petition the Administrator to 

object to the permit. CAA § 505(b)(2); 40 CFR § 70.8(d). 

In the May 2001 Order, I granted petitions from Spectra Environmental Group Inc. and 

Ms. Jeanette Nebus to object to the NYSDEC permit on two grounds: inadequate public notice 

with respect to the limits on the facility’s potential to emit (PTE) - specifically permit conditions 

36 and 41 - and the applicability of the record keeping requirements of the Standards of 

Performance for Industrial-Commercial-Institutional Steam Generating Units (NSPS) Subpart 

Db. The remaining petitions were denied. Pursuant to the Order, NYSDEC reopened the 

comment period and, ultimately, issued the revised permit on October 1, 2001. NYSDEC’s new 

permitting action with respect to these narrow issues, namely its consideration of the PTE limits 

and NSPS Db record keeping requirements, is an appropriate subject matter for petitions under 

section 505(b)(2) of the Act. 

The new petitions with respect to this facility raise a number of claims. Some relate to 

the October 2001 NYSDEC permit decision and some repeat issues previously addressed in the 

May 2001 Order. With respect to the NYSDEC revised permit decision, the petitioners allege 

that (1) the permit fails to include the physical or operational limits necessary to properly limit 

the source’s PTE, (2) the permit limits actual emissions instead of potential emissions, (3) the 

annual emissions limits are set too close to major thresholds, (4) the hourly emissions limits have 

too long an averaging period, (5) the consequences of deviations from or exceedances of permit 

limits are not severe enough, and (6) the inspection and maintenance measures for data from 

continuous emissions monitors (CEM) should be clarified. Additionally, the petitioners raise 

two issues with respect to the applicable requirements of the NSPS, suggesting that the 

requirement to calculate the annual capacity factor needs clarification, and the criteria and 

implications of the use of an emerging technology should be specified. The petitioners request 

that EPA object to the issuance of the Masada permit pursuant to section 505(b)(2) of the Act 

and 40 CFR § 70.8(d) for these reasons. 

The petitioners also reassert several of the claims from previous petitions, including the 

applicability of the major New Source Review and Prevention of Significant Deterioration 

programs, and the emissions of toxic air pollutants. These issues, which were addressed in great 

detail in the May 2001 Order, were not part of NYSDEC’s October 2001 permit decision and are 

thus beyond the scope of this title V petition process. Accordingly, EPA denies all such claims 

that do not relate to the defined scope of the NYSDEC October 2001 permitting decision. 

Finally, one of the petitions raises concerns about environmental justice. While the May 

2001 Order addressed issues regarding NYSDEC’s compliance with Executive Order 12898, the 

new petition questions EPA’s compliance with the Executive Order. This issue will be discussed 

below in section II.C. 

In sum, EPA has performed an independent review of the petitioners’ claims. Based on 

2

review of all the information before me, including the initial Masada permit of July 25, 2000, the 

modified permit of October 1, 2001, my previous Order of May 2, 2001, and the information 

provided by the petitioners in the petitions, I hereby deny the petitions for the reasons set forth in 

this Order. 

I. STATUTORY AND REGULATORY FRAMEWORK 

Major stationary sources of air pollution and other sources covered by title V are required 

to obtain an operating permit that includes emission limitations and such other conditions as are 

necessary to assure compliance with applicable requirements of the Act. See CAA §§ 502(a) 

and 504(a). Section 502(d)(1) of the Act calls upon each State to develop and submit to EPA an 

operating permit program to meet the requirements of title V. EPA granted interim approval to 

the title V operating permit program submitted by the State of New York effective December 9, 

1996. 61 Fed. Reg. 57589 (Nov. 7, 1996); see also 61 Fed. Reg. 63928 (Dec. 2, 1996) 

(correction); 40 CFR Part 70, Appendix A. EPA subsequently granted full approval to New 

York’s program effective November 30, 2001. 66 Fed. Reg. 63180 (Dec. 5, 2001). 

The title V operating permit program does not generally impose new substantive air 

quality control requirements (which are referred to as “applicable requirements”), but does 

require permits to contain monitoring, record keeping, reporting, and other compliance 

requirements to assure compliance by sources with existing applicable requirements. 57 Fed. 

Reg. 32250, 32251 (July 21, 1992). One purpose of the title V program is to enable the source, 

EPA, States, and the public to clearly understand the regulatory requirements applicable to the 

source and whether the source is meeting those requirements. Thus, the title V operating permits 

program is a vehicle for assuring that existing air quality control requirements are appropriately 

applied to facility emission units in a single document and assuring compliance with these 

requirements. 

Under section 505(a) of the Act and 40 CFR § 70.8(a), States are required to submit to 

EPA for review all operating permits proposed for issuance, following the close of the public 

comment period. EPA is authorized under section 505(b)(1) of the Act and 40 CFR § 70.8(c) to 

review proposed permits, and object to permits that fail to comply with applicable requirements 

of the Act, including the State’s implementation plan (and the associated public participation 

requirements), or the requirements of 40 CFR Part 70. 

If EPA does not object to a permit on its own initiative, section 505(b)(2) of the Act and 

40 CFR § 70.8(d) provide that any person may petition the Administrator, within 60 days of the 

expiration of EPA’s 45-day review period, to object to the permit. Petitions must, in general, be 

based on objections to the permit that were raised with reasonable specificity during the public 

comment period. When a petitioner asks EPA to object to a title V permit, a petitioner must 

provide enough information for EPA to discern the basis for its petition. The statute provides 

that a petition for review does not stay the effectiveness of the permit or its requirements if the 

permit was issued after the expiration of EPA’s 45-day review period and prior to an EPA 

objection. If EPA objects to a permit in response to a petition and the permit has been issued, 

the permitting authority or EPA will modify, terminate, or revoke and reissue such a permit 

3

consistent with the procedures in 40 CFR §§ 70.7(g)(4) or (5)(i) and (ii) for reopening a permit 

for cause. 

II. ISSUES RAISED BY THE PETITIONERS 

The Administrator’s Order of May 2, 2001, directed the NYSDEC to reopen the Masada 

permit to allow additional public comments on the methodology for limiting the potential 

emissions of the facility. Also, EPA directed NYSDEC to incorporate the portions of the NSPS 

Subpart Db applicable to the gasifier. The NYSDEC took the necessary steps to remedy these 

deficiencies. The petitioners have now requested that EPA object to Masada’s modified permit 

based on a variety of alleged flaws in the PTE-limiting strategy and the supporting permit terms. 

Petitioners also have concerns with the NSPS requirements and EPA’s compliance with the 

Executive Order 12898 on environmental justice. 

A. Adequacy of Permit Provisions Limiting Masada’s Potential To Emit (PTE) 

1. Need for Physical or Operational PTE Limits 

Several of the petitioners argue that the PTE limits in Masada’s permit are inadequate 

because they are not based on physical or operational limitations. Petitioners Nebus and Glover, 

quoting from EPA’s June 13, 1989 Guidance on Limiting Potential to Emit in New Source 

Permitting,

3

 (hereinafter “1989 Guidance”), argue that “short term limits are the most useful and 

reasonable way to restrict and thereby verify limits on potential to emit.” Petitioner Nebus 

demands that the permit contain operational constraints, including “hours of operations, controls, 

amounts of materials and fuels, input and throughput, limits on what the source does and how 

much capacity they have.” Petitioners Alves et al. also argue in favor of strictly enforced hourly 

limits and limitations on hours of operation and production rates. Petitioner LaFleur claims that 

the NYSDEC and EPA have employed unenforceable blanket emissions limitations in the 

permit, and that Masada is unable to correlate process feedstock and ethanol production with 

emissions. We are addressing these claims under a common heading, since all of these claims 

relate to the need for physical or operational restrictions on the facility’s PTE. 

The Clean Air Act does not specifically address how to calculate a facility’s PTE. EPA’s 

regulatory definition of “potential to emit”4

 refers generally to physical and operational 

3 This me moran dum w as transm itted from Terrell E. H unt, Asso ciate Enfo rcemen t Counse l, Air 

Enforcement Division, Office of Enfo rcement and Com pliance Monitoring and John S . Seitz, Director, 

Stationary Source Com pliance D ivision, Of fice of Air Q uality Pan ning an d Stand ards, to EP A Reg ional air 

directors, EPA Regional Counsels, other EPA headquarters offices and the Chief of the Environmental 

Enforcement Section at the Department of Justice. 

4 EPA re gulations define “p otential to em it” as “the m aximu m capa city of a station ary sourc e 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 

(continu ed...) 

4 
constraints, but leaves room for interpretation about what forms of practically enforceable 

limitations may be appropriate in particular circumstances. Thus, in addition to the 1989 

Guidance cited by the petitioners, which discusses strategies for limiting potential emissions 

from newly constructed facilities, EPA has issued several subsequent guidance documents on 

these issues.5 These documents illustrate that the Clean Air Act and the implementing 

regulations allow for a flexible, case-by-case evaluation of appropriate methods for ensuring 

practical enforceability of PTE limits. The key consideration throughout these policy and 

guidance documents is whether the terms and conditions that limit the potential emissions are, in 

fact, enforceable as a practical matter. 

Masada’s permit relies on a 365-day “rolling cumulative total” emissions limit for 

nitrogen oxides (NOX) and sulfur dioxide (SO2), with emissions recorded each day and added to 

the total from the previous 364 days to determine an annual emissions total each day. To 

support this approach, the permit requires extensive data collection procedures and quality 

assurance measures, including stack testing and direct real-time continuous emissions 

measurements (CEM) to track the total daily emissions from the facility. As discussed below, 

EPA finds that this rolling cumulative methodology is a practically enforceable and effective 

means of limiting PTE in this case. 

The 1989 Guidance cited by some of the petitioners specifically contemplates PTE limits 

based solely on an emissions limit in particular circumstances. For example, the 1989 Guidance 

recognizes that emissions limits, coupled with the requirement to install, maintain and operate a 

CEM system to determine compliance, may be appropriate where setting operating parameters 

for control equipment is infeasible. 1989 Guidance, at 8. Likewise, the 1989 Guidance notes that 

"emissions limits are more easily enforceable than operating or production limits” in volatile 

organic compound surface coating operations where the emissions limit is combined with a 

requirement to calculate daily emissions. Id. 

Petitioners have not demonstrated that NYSDEC erred in determining that it was 

appropriate to employ such emissions limits, coupled with a CEMs system, in this permit. 

4

(...continued) 

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 CFR 

52.21(b)(4). 

5 See, e.g., Memorandum entitled "Guidance an[d] Enforceability Requirements for Limiting 

Potential to E mit throu gh SIP a nd §11 2 Rules a nd Gen eral Perm its," from K athie A. Ste in, Directo r, Air 

Enforcement Division, Office of Enforcement and Compliance Assurance, to Regional Air Directors, dated 

January 25, 199 5; Mem orandu m entitled “3M T ape M anufactu ring Div ision Plant, S t. Paul, Min nesota,” 

from Jo hn B. Ra snic, Direc tor, Stationa ry Sour ce Com pliance D ivision, EP A’s Off ice of Air Q uality 

Planning and Standards, to David Kee, Director, EPA Region V Air and Radiation Division, dated July 14, 

1992; Memorandum entitled "Policy Determination on Limiting Potential to Emit for Koch Refining 

Company Clean Fuels Project,”from John Rasnic to David Kee, dated March 13, 1992; Memorandum 

entitled "Use of Long Term Rolling Averages to Limit Potential to Emit,” from John Rasnic to David Kee, 

dated February 24, 1992. These memos are available on EPA’s Title V Policy and Guidance Database, at 

http://www.epa.gov/region07/programs/artd/air/policy/search.htm. 

5 
Masada’s operations will have significant fluctuations due the variability of the processed waste, 

making an operating parameter-based PTE limit less appropriate. The emissions-based PTE 

limit discussed below recognizes this fact, and provides Masada with operational flexibility 

accordingly. Moreover, Masada will be measuring its emissions on a real-time basis using 

CEMs, thus obviating the need to limit and monitor operating parameters as a surrogate for 

emissions.6 Thus, the petitioners have not demonstrated that it was inappropriate for NYSDEC 

to use the PTE limit to restrict Masada's emissions directly, rather than its operations or 

production. 

Although it is generally preferred that PTE limitations be as short-term as possible (e.g., 

not to exceed one month), EPA guidance also allows permits to be written with longer term 

limits if they are rolled (meaning recalculated periodically with updated data) on a frequent basis 

(e.g., daily or monthly). The 1989 Guidance recognizes that such longer rolling limits may be 

appropriate for sources with “substantial and unpredictable annual variation in production.” 1989 

Guidance, at 9. Similarly, the Agency explained in a 1995 guidance document that "EPA policy 

allows for rolling limits not to exceed 12 months or 365 days where the permitting authority 

finds that the limit provides an assurance that compliance can be readily determined and 

verified."7 Annual limits rolled on a daily basis are entirely appropriate where, as here, the 

operations of the facility will fluctuate throughout the year and CEMs are used to ensure 

practical enforceability. Thus, contrary to petitioners’ assertions, shorter term limits are not 

always essential to a practically enforceable limit. 

Thus, EPA finds that the permit is consistent with the Clean Air Act, EPA’s 

implementing regulations, and Agency policy and guidance. EPA denies the petitions with 

regard to this issue. 

2. Actual emissions vs. PTE 

Petitioners Nebus and Glover assert that the permit constrains the actual emissions, rather 

than potential emissions, of the facility. Ms. Nebus claims that “the issued Masada permit limits 

actual emissions, but not PTE.” She then elaborates that the permit only warns the facility when 

it is getting close to the limit, and does not effectively limit the facility because there are no 

6 This is consistent with prior EPA practice in appropriate circumstances. See e.g., Memorandum 

entitled “3M Tape Manufacturing Division Plant, St. Paul, Minnesota,” from John Rasnic to David Kee, 

dated July 14, 1992 (“a federally enforceable emissions limit may be used ... to limit the potential to emit as 

long as a continuous emissions monitor (CEM) or an acceptable alternative is used.”); and Memorandum 

entitled “Po licy Determ ination on Limiting Potential to E mit for K och Re fining Co mpan y Clean F uels 

Project,” from John Rasnic to David Kee, dated March 13, 1992 (“Use of an emission limit to restrict 

potential to emit ... is acceptable provided that emissions can be and are required to be readily and 

periodically determined or calculated.”) 

7 Mem orandu m entitled “Guida nce and Enforc eability Re quirem ents for L imiting Po tential to 

Emit through SIP and §112 Rules and General Permits,” from Kathie A. Stein, Director, Air Enforcement 

Division, Office of Enforcement and Compliance Assurance, to Regional Air Directors, dated January 25, 

1995. 

6 
operational constraints. Petitioner Glover states that, “this permit disregards PTE and is based 

on actual emissions.” 

In order to be considered practically enforceable, an emissions limit must be 

accompanied by terms and conditions that require a source to effectively constrain its operations 

so as to not exceed the relevant emissions threshold. These terms and conditions must also be 

sufficient to enable regulators and citizens to determine whether the limit has been exceeded and, 

if so, to take appropriate enforcement action. In other words, a source may not lawfully exceed 

that limit. Therefore, under EPA’s regulatory framework, the source does not have the "potential 

to emit" above that limit. This is true whether the limit restricts emissions directly or restricts 

specific operating parameters, as petitioners would prefer. As discussed above in #1, EPA 

believes that Masada’s permit limits are practically enforceable. Therefore, they effectively 

limit Masada’s potential emissions and EPA denies the petitions on this basis. 

3. Annual limits too close to major thresholds 

Petitioners LaFleur, Nebus and Alves et al. each remark on either the unreliability of the 

emissions estimates, or the level at which the annual limits were set for NOX and SO2. Petitioner 

LaFleur states that, “Masada has not provided adequate data nor substantiation of its emissions 

estimates.” Petitioners Alves et al. claim that “the emissions calculations are simply not reliable 

or realistic.” Petitioner Nebus states that the SO2 annual emissions should be limited to less than 

246 tpy and NOX should be limited to less than 99.5 tpy8

. EPA finds that these individual claims 

relate to each other, and is reading them to mean that petitioners request the annual limits to be 

lowered to provide a greater margin of compliance, due to the uncertainty in the facility’s 

emissions estimates. 

This issue was addressed in great detail in the May 2001 Order, and EPA continues to 

disagree that there is a need for a greater margin of compliance between Masada’s PTE limits 

and the applicable major source thresholds. Although EPA agrees that there is some uncertainty 

in Masada’s estimates, it is unrealistic to expect precise emission factors prior to construction in 

cases where the process involves new technology and the facility is the first of its kind. The fact 

that there is some uncertainty regarding the estimates, however, is yet another reason to require 

careful monitoring of actual emissions. 

I already concluded in the May 2001 Order that, based on the Agency’s review of the 

best information currently available, the source’s emissions estimates are sufficiently credible to 

serve as a reasonable basis for determining that the PTE limits can be met by the source 

operating as planned. May 2001 Order, at 24. I also determined that the CEM system, operated 

properly as required by the permit, provides reliable data to assure that Masada’s emissions stay 

8

 Notwithstanding the determination that the Masada facility falls within a 250 tpy source 

category, the Clean Air Act and NYSDEC regulations (6 NYCRR 231) establish a 100 tpy major source 

cutoff for NO for attainment areas that fall within the Ozone Transport Region, as is the case here. x

7 
below the major source thresholds. In addition, stringent measures are included in the permit for 

conservative treatment of missing CEM data, as well as limits on how much data can be missing. 

As noted in the previous Order, a strength of the rolling cumulative total approach is that 

it accounts for the variability in the data. It does so by limiting the source’s operational 

constraints to the actual measured emissions, not the emissions factor, which itself often contains 

inherent uncertainty when applied to an individual case. May 2001 Order, at 23. Indeed, 

Masada bears the risk if it has underestimated emissions in that the source would be required 

under the permit to constrain facility operations to keep emissions below the permit limits. 

Therefore, there is no need for additional margins of compliance, and EPA denies the petitions 

on this issue. 

4. Averaging of hourly emissions limits 

Petitioner LaFleur claims that, “although pounds-per-hour mass limits are expressed in 

the permit, those limits are meaningless because compliance with those short term limits is to be 

demonstrated on a 30-day rolling average.” Many traditional PTE limits are constructed using 

limitations on hourly emissions rates along with restrictions on hours of operation. Since this 

comment could be read broadly as relating to NYSDEC’s October permitting decision regarding 

PTE, I am exercising my discretion to consider this comment as a valid petition issue. 

Petitioner LaFleur is correct that Masada’s PTE limits generally do not rely on the hourly 

mass limits to establish the facility as a minor source. Instead, as discussed above, they rely on a 

365-day rolling total emissions limit, supported with stack testing and direct, real time data from 

CEM. The hourly limits are not directly related to the annual emissions limits specified in 

conditions 36 and 41. 

EPA disagrees with petitioner that the hourly limits on mass emissions of NOX and SO2 

(see condition 81) are meaningless. They serve two important purposes. First, they provide a 

maximum operating level for the facility, which is used in calculating a fallback PTE if CEM 

data availability falls below 75% (see permit conditions 36.2 (I)(3) and 41.2 (I)(4)). Second, 

Masada is required to control its SO2 emissions by 97% under 6 NYCRR 212.9(b), and the 

hourly limit of 61.2 lb/hr represents the level to which Masada must control. Therefore, the 

hourly limit serves to help make the 97% control limit practically enforceable. For the purposes 

described here, it is reasonable for the permit to allow the collected CEM data to be compiled 

and averaged every 24 hours, incorporating data from the most recent 30 days. EPA denies Mr. 

LaFleur’s petition on this issue. 

5. Consequences 

Petitioners Nebus and Glover both claim that there should be severe consequences to 

Masada for exceeding any emissions limit. They each have similar statements in their respective 

petitions, claiming that in all instances of excess emissions, the facility must immediately submit 

a major source permit application. Ms. Nebus goes a step further and contends that, in the case 

of an exceedance, the facility should be shut down until all requirements are met. 

8

EPA believes the permit has sufficiently strong language about some of the possible 

consequences of exceeding a PTE limit or any permit violation. However, the permit does not, 

nor should it, list comprehensively all the potential enforcement ramifications of noncompliance. 

The permit describes varying degrees of consequences, depending on the nature of the violation. 

Conditions 36.2 (I)(4) and 41.2 (I)(5) specify that if the CEM data availability drops below 95%, 

a record keeping violation will be cited, after the first year of operation. Conditions 36.2 (I)(3) 

and 41.2 (I)(4) specify that if the CEM data availability drops below 75%, then a new 

methodology for calculating PTE is to be used. The maximum hourly emission rate is to be 

multiplied by 8,760 hours (365 days x 24 hours), resulting in PTE above major source 

thresholds, and Masada must promptly submit the appropriate permit applications for review 

under major NSR and/or PSD. Conditions 36.2 (I)(1) and (III)(1) and 41.2 (I)(1) & (III)(1) 

specify that any exceedance of the annual limit (99.5 tpy NOX or 246 tpy SO2) shall constitute 

365 days of violation. Conditions 36.2 (I)(2) and 41.2 (I)(2) specify that if the facility exceeds 

100 tpy NOX or 250 tpy SO2, then the facility shall be subject to major NSR and/or PSD as 

though construction had not yet commenced, and Masada must promptly submit the appropriate 

permit applications. It is important to note that if the facility exceeds these limits, not only does 

it need to get a major source permit, but it may be considered to have been in violation of PSD 

and/or NSR from the time it was initially constructed. Finally, condition 41.2 (I)(3), relating to 

SO2, specifies that if Masada applies to relax any permit restrictions and thus becomes a major 

source, then the facility must undergo PSD review as though construction had not yet 

commenced. 

Petitioner Nebus also claims that Masada should shut down in the case of an exceedance. 

EPA disagrees that the permit needs to be revised to include such a statement. The CAA 

provides sufficient enforcement authority for EPA to enforce this permit and all other CAA 

requirements. See e.g. § CAA 113, 303, 502(b)(5)(E). States have similar authority. EPA and 

the state must retain discretion to determine what remedy is appropriate in any given situation. 

There may be occasions where NYSDEC or EPA may see a need to shut down a facility. As 

expressed in Condition 1 of the Facility Level section of the permit, NYSDEC has authority 

under 6 NYCRR 200.5 to seal access to any air contamination source.9 EPA has authority to 

address similar compliance problems, including seeking an immediate injunction to cease 

operation. The authority to enforce this permit can not be expanded by this permit and it is not 

appropriate to attempt to specify or limit the response that will be taken in the case of a violation. 

If EPA or NYSDEC requires Masada to submit a permit application because of a permit 

violation, a prompt submittal is sufficient, and there is no need to require an immediate 

application. NYSDEC has the authority to determine if an application is delayed beyond reason, 

9

 The commissioner may seal an air contamination source to prevent its operation if compliance 

with 6 N YCRR Chapter III is not m et within the time pro vided b y an ord er of the co mmiss ioner issue d in 

the case of the violation. Sealing means labeling or tagging a source to notify any person that operation of 

the sourc e is prohib ited, and also includes p hysical m eans of p reventing the opera tion of an air 

contamination source without resulting in destruction of any equipment associated with such source, and 

includes, b ut is not limite d to, bolting , chaining or wiring shut con trol panels, a pertures o r condu its 

associated with such source. (6 NYCRR 200.5, page 5 of permit, Item 1.1(a)) 

9 
and take appropriate action. In conclusion, EPA believes the permit is sufficient, and denies the 

petitions on this issue. 

6. CEM Inspection and Maintenance 

Petitioner Nebus expresses concerns that there are not enough backup measures or 

safeguards for times when the CEM are not operational. She also believes the permit should 

specify the schedule for inspecting and performing maintenance on the CEM. 

EPA believes the permit is clear about what Masada should do in case of problems with 

the CEM. Conditions 36.2 (I)(3-4), (II)(5) and 41.2 (I)(4-5), 41.2 (II)(5) specify measures to 

take when CEM are not available. Calculations are to be made, substituting data according to 40 

CFR §§ 75.31 or 75.33 (c)(1) (if availability above 95%) or permit-specific procedures (if 

availability below 95%). If CEM data availability ever falls below 75%, the facility is to use its 

maximum permitted hourly rate multiplied by 8,760 hours. Regarding maintenance of the 

systems, the terms at conditions 36.2 (II)(2-4) and 41.2 (II)(2-4) say to install, maintain and 

operate NOX and SO2 CEM systems. Although these terms are not specific in how frequently to 

perform maintenance on the CEM, the permit specifies elsewhere that Masada will comply with 

40 CFR Part 75 regarding the maintenance of CEM systems. Also, condition 76.2 (10) specifies 

that daily CEM drift tests and quarterly accuracy assessments must be performed on CEM 

measuring NOX from the package boiler (40 CFR 60 Appx. F, Procedure 1). 

In conclusion, it should be noted that the burden is on the petitioners to demonstrate how 

the safeguards and related provisions in the permit are not adequate. The petitioners in this case 

have not met this burden to justify an objection to the permit. Finally, EPA believes that the 

permit is structured to provide a powerful incentive for Masada to maintain its CEM in optimum 

operating condition, because of the consequences associated with loss of data. EPA believes the 

permit is satisfactory in this regard, and denies the petitions on this issue. 

B. New Source Performance Standards 

1. Annual Capacity Factor 

Petitioners Nebus and Glover request clarification of what Masada’s obligations are 

regarding some of the terms in the permit addressing Standards of Performance for IndustrialCommercial-Institutional Steam Generating Units. The notification requirement at 40 CFR 

60.49b (a) in Subpart Db, listed in permit condition 1-4, specifies four items that must be 

reported at the time the facility begins to operate. Specifically, sources are required to report (1) 

the design heat input capacity and identification of the fuels to be combusted, (2) a copy of any 

federally enforceable requirement that limits the annual capacity factor, (3) a calculation of the 

annual capacity factor at which the facility expects to operate, and (4) notification of any 

emerging technology that will be used for controlling emissions of sulfur dioxide. These factors 

are to be reported for each fuel that the facility expects to fire. In addition, permit condition 1-5 

cites the record keeping requirement at 40 CFR § 60.49b(d), which requires calculation of the 

annual capacity factor using a rolling 12-month average. Petitioners Nebus and Glover believe 

10

the permit should specify what fuels Masada uses, which fuel is most polluting, and how 

emissions are controlled. 

Both the 124 mmBtu/hr natural gas-fired package boiler and the 245 mmBtu/hr fluidized 

bed gasifier are subject to 40 CFR 60.49b (d). Permit condition 75 incorporates this requirement 

for the package boiler, and is identical to permit condition 1-5 relating to the gasifier. In 

accordance with EPA’s May 2001 Order, NYSDEC’s October 2001 permitting decision 

reopened the permit to apply the NSPS to the gasifier, as the regulation was properly applied to 

the package boiler in the July 2000 permit. Therefore today’s response addresses this comment 

as it relates to the gasifier. 

EPA disagrees that the permit needs to be revised. The facility description states that the 

gasifier will combust only natural gas, lignin, processed biosolids and digester gas and the 

permit properly requires the facility to identify the fuels that are being combusted as part of the 

initial start-up notification. However, the issue of which fuel is most polluting and how the 

emissions from the firing of these fuels are controlled is not germane because the substantive 

emissions limitations of NSPS Db apply only to coal-fired and oil-fired steam generating units 

and thus do not apply to the gasifier. 

Petitioner Nebus expresses a concern that the annual capacity factor is only calculated on 

a 12-month rolling average, instead of a daily average. She refers to the 365-day rolling total 

that exists elsewhere in the permit. EPA wishes to clarify that the annual capacity factor (ACF) 

is a ratio of how much energy a steam generating unit actually produces in a year divided by the 

maximum energy it could produce if it ran 8,760 hours (365 days x 24 hours) at its maximum 

heat input capacity. This factor is generally useful because some of the requirements in the 

NSPS vary depending on the ACF for a facility. In Masada’s case, there are no applicable 

requirements that depend on the unit’s calculated ACF, and Masada has no restrictions on how 

high its ACF can be. Therefore, EPA believes there would be no value if Masada were to 

calculate its ACF on a more frequent basis than required by the NSPS as stated. EPA denies the 

petitions on this issue. 

2. Emerging Technologies 

Petitioner Nebus expresses a concern that the permit is ambiguous as to whether Masada 

will use an emerging technology. Permit condition 1-4.2 (4), in applying the NSPS at Subpart 

Db (Industrial-Commercial-Institutional Steam Generating Units) to the gasifier, specifies that 

Masada must report whether it intends to use an emerging technology to control SO2 emissions 

as part of the notification of startup. The regulations also specify that EPA must review and 

approve a determination of whether a technology qualifies as emerging for purposes of this rule. 

If the EPA determines that a technology qualifies as "emerging", then the regulation at 40 CFR 

60.42b allows facilities using emerging technology to have more lenient control requirements for 

SO2 than facilities using conventional technology. 

Ms. Nebus claims the emerging technology should be named in the permit, and the public 

has a right to know whether the Administrator makes such a determination in a given case. EPA 

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agrees that in a case where the Administrator does determine that a technology qualifies as 

emerging, and the facility receives more lenient permit limits as a result, the public should be 

informed. However, as noted previously, the standards regulating emissions of SO2 at 40 CFR 

60.42b only apply to facilities that combust coal or oil. Because the gasifier does not combust 

these fuels, it is not subject to this standard. 

EPA understands why there may be some confusion on the part of the petitioner 

regarding whether Masada will use an emerging technology. As it happens, the dry lime 

injection and spray dryer absorber to be used by Masada to control SO2 emissions from the 

gasifier are conventional technologies. EPA denies the petitions on this issue. 

C. Environmental Justice - Executive Order 12898 

EPA also received a petition arguing that EPA failed to evaluate the “environmental 

disparate impacts” on minority and low-income communities under Executive Order 12898.10 

The petition asserts that the proposed plant site is in the vicinity of a day care center, nursery, 

retirement home, senior citizen apartments, three public schools and three low-income housing 

projects. The petitioners state that EPA had extensive involvement in reviewing the NYSDEC 

permit, which now “carries EPA’s imprimatur.” Petitioners cite, by way of example, letters and 

meetings between EPA and the NYSDEC on the adequacy of the state’s proposed and draft 

permit, meetings and letters between Senator Richard Shelby (R-AL), Masada CEO Daryl 

Harms and Administrator Browner, and the Administrator’s May 2, 2001 Order. 

Executive Order 12898, signed on February 11, 1994, focuses federal attention on the 

environmental and human health conditions of minority populations and low-income populations 

with the goal of achieving environmental protection for all communities. The Executive Order 

also is intended to promote non-discrimination in federal programs substantially affecting human 

health and the environment, and to provide minority and low-income communities access to 

public information on, and an opportunity for public participation in, matters relating to human 

health or the environment. It generally directs federal agencies to make environmental justice 

part of their mission by identifying and addressing, as appropriate, disproportionately high and 

adverse human health or environmental effects of their programs, policies, and activities on 

minority and low-income populations. I recently reaffirmed EPA’s commitment to ensuring that 

environmental justice is secured for all communities in a memorandum to senior Agency 

officials dated August 9, 2001. 

Environmental justice issues can be raised and considered in a variety of actions carried 

out under the Clean Air Act, as for example when EPA or a delegated state issues a PSD or NSR 

10 The petition was signed by the following people: Talkini Alves, Vidal Milland, Kristine 

Hann on, Bridg et Copp ola, Nico le Youn g, Kathle en Hou se, Cam pbell Ho use, Susa n Cohe n, Debb ie 

Carlisle, Roberta Constantino, and Elizabeth Collard. 

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permit.11 Unlike PSD or NSR permits, however, title V generally does not impose new, 

substantive emission control requirements, but rather requires that all underlying applicable 

requirements be included in the operating permit. Title V also includes important public 

participation provisions as well as monitoring, compliance certification and reporting obligations 

intended to assure compliance with the applicable requirements. 

In this particular case, petitioners have not demonstrated that the Masada title V permit 

fails to properly identify and comply with the applicable underlying requirements of the Act, the 

approved state implementation plan, or the requirements of title V itself; thus, the petition to 

object to the permit must be denied. In addition, the record does not indicate that concerns about 

environmental justice and the application of the Executive Order were raised to NYSDEC during 

the comment period on the revised permit which ended on June 25, 2001. EPA’s title V 

regulations provide that issues may not be raised for the first time in the context of a petition to 

the Administrator. 40 CFR §70.8(d). This issue is, therefore, not one which provides grounds 

for me to object to NYSDEC’s issuance of the Masada permit. 

However, as explained in the May 2001 Order, as a recipient of EPA financial assistance, 

the programs and activities of NYSDEC, including its issuance of the Masada permit, are subject 

to the requirements of title VI of the Civil Rights Act of 1964, as amended, and EPA’s 

implementing regulations, which prohibit discrimination by recipients of EPA assistance on the 

basis of race, color, or national origin. 42 U.S.C. § 2000d et seq.; 40 CFR Part 7. The petitioners 

may file a complaint under title VI and EPA’s title VI regulations if they believe that the state 

discriminated against them in violation of those laws by issuing the permit to Masada. The 

complaint, however, must meet the jurisdictional criteria that are described in EPA’s title VI 

regulations in order for EPA to accept it for investigation.12 

11 Indeed, as indicated in the response to another Title V permit petition, section 173(a)(5) of the 

Clean A ir Act requ ires that a per mit for a “m ajor sourc e” subjec t to the NS R prog ram m ay be issue d only if 

an analysis of alternative sites concludes that “the benefits of the proposed source significantly outweigh 

the environmental and social costs imposed as a result of its location, construction or modification.” See 

Borden Chemical, Inc., Title V petition No. 6-01-01 (Dec. 22, 2000), pp. 34-44, available at 

http://ww w.epa.g ov/regio n07/pro grams/a rtd/air/title5/petition db/petition s/borden _respon se1999 .pdf. 

12 Under Title VI, a recipient of federal financial assistance may not discriminate on the basis of 

race, colo r, or nation al origin. Pu rsuant to E PA’s T itle VI adm inistrative reg ulations, E PA’s O ffice of Civ il 

Rights conducts a preliminary review of Title VI complaints for acceptance, rejection, or referral. 40 CFR 

§ 7.120(d)(1). A complaint should meet jurisdictional requirements as described in EPA’s Title VI 

regulations. First, it must be in writing. Second, it must describe alleged discriminatory acts that may 

violate EPA’s Title VI regulations. Title VI does not cover discrimination on the grounds of income or 

economic status. Third, it must be timely filed. Under EPA’s Title VI regulations, a complaint must be 

filed within 180 ca lendar days of th e alleged discrimina tory act. 40 CFR § 7.120(b)(2 ). Fourth, because 

EPA’s Title VI regulations only apply to recipients of EPA financial assistance, it must identify an EPA 

recipient that allegedly committed a discriminatory act. 40 CFR § 7.15. 

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III. CONCLUSION 

For the reasons set forth above and pursuant to sections 505(b) and 505(e) of the Act, 42 

U.S.C. §§ 7661d(b) and (e), and 40 CFR §§ 70.7(g)(4) or (5) and 70.8(d), I deny the petitions 

submitted by Jeanette Nebus, Robert LaFleur, Deborah Glover, Talkini Alves, Vidal Milland, 

Kristine Hannon, Bridget Coppola, Nicole Young, Kathleen House, Campbell House, Susan 

Cohen, Debbie Carlisle, Roberta Constantino, and Elizabeth Collard. 

April 8, 2002 / S / 

Dated:	 Christine Todd Whitman, 

Administrator 

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