1994-034a 

DANIEL L. CARDOZO 

THO A. ENSLOW 

TANYA A. GULESSERIAN 

MA D. JOSEPH 

LOU A A. MILES 

GL IA D. SMITH 

FELLOW 

RACHAEL E. KOSS 

OF COUNSEL 

THOMAS R. ADAMS 

ANN BROADWELL 

MAS

RC

LEN

OR

SACRAMENTO OFFICE 

520 CAPITOL MALL, SUITE 350 

SACRAMENTO, CA 95814-4715 

TEL: (916) 444-6201 

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ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION 

ATTORNEYS AT LAW

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July 7, 2008 

Via Email: Lee.Anita@epamail.epa.gov

Anita Lee 

Environmental Protection Agency, 

Air Permits Office 

75 Hawthorne Street (AIR-3) 

San Francisco, CA 94105 

 Re: Comments on the Victorville 2 Draft PSD Permit

Dear Ms. Lee: 

On behalf of California Unions for Reliable Energy (“CURE”), this letter 

provides comments on the EPA’s draft prevention of significant deterioration 

(“PSD”) air permit for the City of Victorville’s proposed power plant (“Project”). The 

Project is a 563 MW electric generating facility located in the City of Victorville in 

San Bernardino County. The EPA’s Region 9, the PSD permitting authority, issued 

a statement of basis and ambient Air Quality Impact Report (“SOB”) and a Draft 

Clean Air Act PSD Permit (“Draft Permit”).1 

CURE is a coalition of labor unions whose members help solve the state’s 

energy problems by building, maintaining and operating conventional and 

renewable energy power plants. Since its founding in 1997, CURE has been 

committed to building a strong economy and a healthier environment. (See 

http://www.sbctc.org/cure/.) Individual members of the CURE unions live in and 

use areas that will suffer the impacts of the Project. These members breathe the 

polluted air and suffer the adverse health and safety impacts from unnecessary air 

 

1 U.S. Environmental Protection Agency, Region IX, Victorville II Hybrid Power Project (SE07-02), 

Prevention of Significant Deterioration Permit, Proposed Permit Conditions, June 2008 (“proposed 

PSD Permit”); Docket No. EPA-R09-OAR-2008-0406-0017; and Statement of Basis and Ambient Air 

Quality Impact Report for a Clean Air Act Prevention of Significant Deterioration Permit, June 2008 

(“Statement of Basis”); Docket No. EPA-R09-OAR-2008-0406-0016. 
July 7, 2008 

Page 2 

1994-034a

pollution. Given the proximity to this and other projects, CURE has helped cut 

smog-forming pollutants in half, reduced toxic emissions, increased the use of 

recycled water for cooling systems and pushed for groundbreaking pollution control 

equipment as the standard for all new power plants, all while ensuring new power 

plants are built with highly trained, professional workers who live and raise 

families in nearby communities. 

As discussed below, the proposed PSD Permit is inadequate because the 

proposed PSD Permit and the supporting Statement of Basis prevent full and fair 

public review; EPA prematurely issued the application completeness determination 

rendering the determination deficient; the EPA failed to determine that the Project 

may result in violations of the 24-hour PM2.5 National Ambient Air Quality 

Standard (“NAAQS”); the best available control technology (“BACT”) 

determinations were incomplete and flawed, including the lack of a BACT 

determination for greenhouse gases and the failure to require BACT for particulate 

matter and carbon monoxide (“CO”) emissions from the combustion turbine 

generators (“CTGs”); EPA failed to set a limit for the ammonia slip from the 

selective catalytic reduction (“SCR”) system; the proposed permit limits are not 

federally enforceable; and the project does not comply with the Endangered Species 

Act or the National Environmental Policy Act among other things described below. 

We have prepared these comments with the assistance of Dr. Petra Pless. 

Dr. Pless’ comments along with her curriculum vitae are provided herein as 

Attachment 1. Please note that the expert’s comments supplement the issues 

addressed below, thus her comments should be addressed and responded to 

separately. 

I. THE PROPOSED PSD PERMIT AND STATEMENT OF BASIS DETER 

 FULL AND ACCURATE PUBLIC REVIEW 

For all practical purposes, the proposed PSD Permit and the supporting 

Statement of Basis were presented in a way that makes it nearly impossible for an 

independent reviewer to trace and evaluate the EPA’s decision making process. 

The Statement of Basis did not present all of the information necessary for 

members of the public to verify whether the EPA’s determinations were correct. 

Instead, the reviewer was forced to consult a multitude of documents beyond the 

Applicant’s application for a PSD Permit (“PSD Application”), its supplements and 

the EPA’s administrative record for this project. For example, rather than provide 
July 7, 2008 

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1994-034a

 

a complete BACT analysis for each pollutant and source subject to PSD review to 

support the BACT-based permit limits in the body of the document, the Statement 

of Basis provided only brief summaries that were based on a number of additional 

documents. The PM10 (as a surrogate for PM2.5) BACT analysis for the Project’s 

CTGs is a prime example. The Statement of Basis provided the following terse 

summary: 

Particulate emissions from the gas turbine trains result from fuel sulfur, 

inert trace contaminants, and incomplete combustion of hydrocarbons. We do 

not believe that any add-on particulate emission controls have been 

demonstrated in practice for this type of source. Thus, the proposed permit 

limits the sulfur content of the fuel to no more than 0.2 grains per 100 dry 

standard cubic feet as BACT, which would limit sulfate particulate emissions. 

We are proposing to limit particulate emissions (PM and PM10) to 12 lb/hr 

from each turbine without duct burner firing, and 18 lb/hr with duct burner 

firing. As noted earlier, using PM10 as a surrogate for PM2.5 does not affect 

the emission controls selected as BACT.2

The EPA’s conclusion regarding PM and PM2.5 BACT appear to be based on 

the BACT analyses contained in two supplemental submissions to the PSD 

Application for PM2.5 and PM, but the Statement of Basis did not mention these 

documents. These supplements to the PSD Application can be found in the docket 

on the EPA’s website.3 Our review of these documents shows that they, in turn, do 

not contain all of the information relied upon to come to conclusions regarding 

BACT either. The necessary information, specifically, the PM and PM10 permit 

limits from the South Coast Air Quality Management District’s BACT Guidelines 

and the EPA’s RACT/BACT/LAER Clearinghouse for other, similar facilities relied 

upon to determine the BACT permit limits for Victorville II are not provided in the 

supplements to the PSD Application, or for that matter anywhere in documents 

2 Statement of Basis, pp. 14-15. 

3 Sara Head, ENSR, Letter to Ed Pike, U.S. Environmental Protection Agency, San Francisco, CA, 

Subject: Supplement to Application for Prevention of Significant Deterioration Permit for Victorville 

2 Hybrid Power Project (VV2), June 25, 2007; Docket No. EPA-R09-OAR-2008-0406-0009; Thomas 

Barnett, Inland Energy, Inc., Letter to Anita Lee, U.S. Environmental Protection Agency, San 

Francisco, CA, Subject: Supplement to Application for Prevention of Significant Deterioration (PSD) 

Permit for Victorville 2 Hybrid Power Project, January 28, 2008; Docket No. EPA-R09-OAR-2008-

0406-0010. 
July 7, 2008 

Page 4 

1994-034a

 

listed on the EPA’s website. The respective BACT determinations contain no 

reference where to find the information they relied upon to reach their conclusions 

regarding the proposed BACT permit limits. The docket shows that a number of 

California Energy Commission documents have been submitted into the 

administrative record, such as the Application for Certification (“AFC”,4 the 

Preliminary5 and Final Staff Assessments,6 and some mysterious “Distribution of 

Supplemental Information,” which are not available directly on the EPA’s website 

but rather are available on the CEC’s website.7 This sends the reviewer on a wild 

goose chase searching through these several hundred-page documents and their 

respective, equally long appendices, updates, and revisions to find the most up-todate list of permit limits for these pollutants. At a bare minimum, EPA should have 

referenced and provided cites to the relevant data. 

The EPA’s failure to “show its work” runs counter to its obligation to conduct 

an independent review of the Applicant’s BACT determinations, giving instead the 

impression that EPA simply-rubber-stamped the application. In addition, the 

review process the EPA used here effectively frustrated public review and analysis. 

The analytic path showing the basis for the EPA’s decisions must be clear and welldocumented in a stand-alone document referencing a few clearly identified 

documents without requiring the reviewer to wade through literally stacks of 

documents on the EPA’s and the California Energy Commission’s websites. 

Finally, CURE’s experts attempted to evaluate the Project’s modeling data 

purported to be part of EPA’s administrative record. However, the modeling data 

was completely omitted from the record. CURE attempted to obtain the modeling 

data on July 3, 2008, however no one at Region 9 was available to provide the data. 

This omission begs the question whether EPA itself ever reviewed the modeling 

data. 

4 Inland Energy, Inc., Application for Certification, Victorville Hybrid Power Project, February 2007. 

5 California Energy Commission, Victorville 2 Hybrid Power Project, Application For Certification 

(07-AFC-1), San Bernardino County, Preliminary Staff Assessment, CEC-700-2007-021-PSA, 

November 2007. 

6 California Energy Commission, Victorville 2 Hybrid Power Project, Application For Certification 

(07-AFC-1), San Bernardino County, Final Staff Assessment, CEC-700-2007-021-FSA, March 2008. 

7 See U.S. Environmental Protection Agency, Region IX, Administrative Record Index, Victorville 2 

Hybrid Power Project, PSD Permit (SE-07-02), Docket No. EPA-R09-OAR-2008-0406, see footnote 

referencing the availability of CEC documents at: 

http://www.energy.ca.gov/sitingcases/victorville2/documents/index.html. 
July 7, 2008 

Page 5 

1994-034a

 

II. THE EPA’S COMPLETENESS DETERMINATION WAS ISSUED 

PREMATURELY AND IS DEFICIENT 

On June 13, 2007, the EPA issued an application completeness determination 

(“Completeness Determination”) to the Applicant stating that the EPA received the 

initial PSD Application on May 8, 2007 and an update on June 22, 2007, which 

together would cover the pollutants NOx, CO, and PM2.5, and that the EPA deems 

the PSD Application administratively complete.8 The Completeness Determination 

was prematurely made and is thus invalid for several reasons. 

First, the Completeness Determination was issued prematurely because it 

did not address PM, one of the criteria pollutants subject to PSD review.9 On 

December 20, 2007, six months after the Completeness Determination was issued, 

the EPA requested information regarding PM and received a PM analysis from the 

Applicant on January 28, 2008.10 An analysis of PM is essential for the EPA’s 

review of the Project as PM is a regulated PSD pollutant. Thus, this information 

was required to be available to the EPA before issuing a Completeness 

Determination. EPA’s request for this information six months after issuing the 

Completeness Determination demonstrated that the Completeness Determination 

was issued prematurely because it omitted PM. 

Second, greenhouse gases are also pollutants subject to regulation under the 

Clean Air Act, as discussed in more detail in Comment IV.A and the EPA was 

required to address these pollutants in its review and ensure that the Applicant had 

provided EPA with all necessary information prior to issuing a Completeness 

Determination. Therefore, the Completeness Determination is invalid because it 

failed to address pollutants subject to regulation under the Act. 

Third, the Agency failed to set PM2.5 BACT limits, instead using PM10 

BACT as a surrogate. As discussed below this approach violates federal law. 

8 U.S. Environmental Protection Agency, Region IX, Jon Roberts, City of Victorville, Subject: 

Application Completeness Determination for Victorville II Prevention of Significant Deterioration 

Permit Application, June 13, 2007; Docket No. EPA-R09-OAR-2008-0406-0008S. 

9 Statement of Basis, Table 3, p. 9. 

10 Thomas Barnett, Inland Energy, Inc., Letter to Anita Lee, U.S. Environmental Protection Agency, 

San Francisco, CA, Subject: Supplement to Application for Prevention of Significant Deterioration 

(PSD) Permit for Victorville 2 Hybrid Power Project, January 28, 2008; Docket No. EPA-R09-OAR2008-0406-0010. 
July 7, 2008 

Page 6 

1994-034a

 

In sum, the EPA prematurely issued the Applicant a Completeness 

Determination even though the Application itself was deficient of critical 

information and analyses essential to the PSD Application. 

III. The Agency’s PM2.5 PSD Analysis Is Flawed 

The Statement of Basis identified PM2.5 as an attainment pollutant subject 

to PSD review.11 For purposes of PSD review of PM2.5, the Agency determined that 

the use of PM10 as a surrogate for PM2.5 is appropriate.12 Accordingly, the Project 

impact analysis of ambient air quality relied on modeling of estimated PM10 

emissions.13 For a 24-hour averaging period, maximum project impacts from all 

Project sources were estimated at 6.1 μg/m3 of PM2.5 (on a PM10 as a surrogate 

basis). On an annual basis, maximum Project impacts were modeled at 0.3 μg/m3 of 

PM2.5 (on a PM10 as a surrogate basis).14,15 Based on these modeled maximum 

impacts, the Agency concluded that Project operation would not cause a violation of 

the PM2.5 National Ambient Air Quality Standards (“NAAQS”) and would therefore 

not be significant.16 The Agency’s analyses violate federal law and are flawed. 

Therefore, the Agency’s conclusions regarding the significance of Project impacts 

are erroneous as shown below. 

A. The Use of PM10 as a Surrogate for PM2.5 Violates Federal 

Law and Relies on Guidance That Is In Conflict with Statutory 

Requirements and Is No Longer Technically Justified 

Contrary to the Agency’s assertions, PM10 cannot be used as a surrogate for 

PM2.5 for purposes of PSD review. This surrogate approach violates federal law 

11 Statement of Basis, p. 9. 

12 Ibid. 

13 Ibid and footnote 15, p. 20. 

14 Statement of Basis, Table 7, p. 20. 

15 Sara Head, ENSR, Letter to Ed Pike, U.S. Environmental Protection Agency, San Francisco, CA, 

Subject: Supplement to Application for Prevention of Significant Deterioration Permit for Victorville 

2 Hybrid Power Project (VV2), June 25, 2007; Docket No. EPA-R09-OAR-2008-0406-0009; Table 2, 

p. 5. 

16 Statement of Basis, p. 19. 
July 7, 2008 

Page 7 

1994-034a

 

and relies on guidance that is in conflict with statutory requirements, and is no 

longer technically justified. 

Using PM10 as if it were PM2.5 violates federal and state law. The EPA 

since 1997 has distinguished PM2.5 from PM10, most importantly by setting 

different NAAQS for each pollutant based on their different health impacts.32 The 

Clean Air Act contains specific requirements regarding areas whose air quality 

violates the National Ambient Air Quality Standards, or NAAQS.31 Therefore, the 

EPA must determine directly whether the project will result in a significant 

emissions increase and significant net emissions increase of PM2.5 to ensure 

protection of the public health and compliance with the NAAQS. 

Further, the EPA based its decision to use PM10 as a surrogate for PM2.5 

emissions on its “October 23, 1997 transition memo guidelines, which authorize 

limits for PM10 as a surrogate for limits on PM2. 5 during the transition period 

lasting until final PSD PM2.5 regulations are issued...”17 Reliance on this memo 

was improper and invalidates the EPA’s analysis of PM2.5. 

First, the EPA cannot rely on guidance that does not have the force of law 

when that guidance, as here, is in conflict with statutory and regulatory 

requirements. Further, a BACT limit is required “for each regulated NSR pollutant 

for which the source has the potential to emit in significant amounts.”18 A 

“regulated NSR pollutant” includes any “pollutant for which a national ambient air 

quality standard has been promulgated...” and any other “pollutant that otherwise 

is subject to regulation under the [Clean Air] Act...”19 Therefore, the Agency should 

have analyzed PM2.5 as a separate pollutant and issued a separate PM2.5 BACT 

limit. 

Second, the Agency’s recommended use of PM10 as a surrogate for PM2.5 

expired by its own terms when the EPA published the final PM2.5 implementation 

rule in September 2007.20 The 1997 memo cited above provided interim guidance 

17 Statement of Basis, footnote 8, p. 12. 

18 40 CFR 52.21(j)(2). 

19 40 CFR 52.21(b)(50(i) – (iv). 

20 See Final Rule for Implementation of the New Source Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers (PM2.5). 
July 7, 2008 

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1994-034a

 

for implementing the new PM2.5 NAAQS.21 This ten-year-old memo stated that 

sources could use the PM10 surrogacy approach to meet NSR requirements until 

certain difficulties were resolved, most notably with respect to monitoring, 

emissions estimation, and air quality modeling. A more recent EPA memo 

reaffirmed the surrogacy approach specifically for nonattainment NSR, but noted 

that EPA recommended using PM10 as a surrogate for PM2.5 “until [U.S. EPA] 

promulgate[s] the PM2.5 implementation rule.”22 As mentioned above, the final 

PM2.5 implementation rule has been published in September 2007. 

Third, technical difficulties in directly implementing the PM2.5 NAAQS that 

grounded the 1997 interim guidance have been resolved. The EPA itself noted in 

the preamble to the November 2005 Proposed PM2.5 Implementation Rule that 

these technical concerns have been resolved: “As discussed in this preamble, those 

difficulties have been resolved in most respects, and where they have not been, the 

proposal contains appropriate provisions to account for it.”23 The EPA also has 

included the PM2.5 algorithms in the AERMOD air quality computer modeling 

program, the recommended model for short distance air quality assessment, thus 

formally resolving prior concerns about PM2.5 modeling capabilities.24 

B. The Agency Must Implement the Final Rule for 

Implementation of the New Source Review Program for PM2.5 

On May 8, 2008, EPA finalized its regulations to implement the NSR 

program for fine particulate matter, effective July 15, 2008.25 The new rule, 

entitled “Final Rule for Implementation of the New Source Review (NSR) Program 

for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” requires all sources to 

determine Project impacts on a PM2.5 as PM2.5 basis. The rule applies to all 

21 John S. Seitz, U.S. Environmental Protection Agency, Memorandum, Interim Implementation of 

New Source Review Requirements for PM2.5, October 23, 1997. 

22 Stephen D. Page, U.S. Environmental Protection Agency, Memorandum, Implementation of New 

Source Review Requirements in PM-2.5 Nonattainment Areas, April 5, 2005. 

23 Proposed Rule To Implement the Fine Particle National Ambient Air Quality Standards, 70 Fed. 

Reg. 65984, 66043, November 1, 2005; emphasis added. 

24 See Revision to the Guideline on Air Quality Models: Adoption of a Preferred General Purpose 

(Flat and Complex Terrain) Dispersion Model and Other Revisions; Final Rule, 70 Fed. Reg. 68218, 

68253, November 9, 2005, adopting AERMOD as the “preferred model”. 

25 Final Rule for Implementation of the New Source Review (NSR) Program for Particulate Matter 

Less Than 2.5 Micrometers (PM2.5). 
July 7, 2008 

Page 9 

1994-034a

 

projects except those where EPA had issued a valid completeness determination 

prior to the rule’s effective date.26

As shown above, the EPA’s Completeness Determination was premature 

because the application is incomplete in numerous ways. EPA must rescind the 

proposed PSD Permit, request a BACT analysis of greenhouse gases from the 

Applicant, and issue a new Completeness Determination once these BACT analyses 

have been submitted. Because this new Completeness Determination will occur 

after July 15, 2008, the Agency must also include a PM2.5 BACT analysis based on 

the Final Implementation Rule’s requirements. 

C. Modeled PM2.5 Emissions from the Project’s Stationary 

Sources Exceed PM10 Significant Impact Levels 

The EPA was required to find significant impacts for PM2.5 emissions from 

the Project when using the PM10 surrogacy approach. The first step in determining 

whether a source would cause significant deterioration of air quality is to compare 

maximum modeled ambient air concentrations of attainment pollutants to 

established significant impact levels (“SILs”), also called significance levels. A SIL 

for a given criteria pollutant and averaging period is defined as the ambient 

concentration produced by a source’s emissions below which the source is assumed 

to have a less-than-significant impact on air quality. The SILs for emissions of SO2, 

PM10, NOx, CO, and O3 in Class II areas can be found in the EPA’s NSR Manual,27

Table C-4.28 The Class II SIL for PM10 established for a 24-hour period is 

5.0 μg/m3. The Class II PM10 SIL on an annual basis is 1.0μg/m3.29 The Class I SIL 

for PM10 established for a 24-hour period for areas located within 100 kilometers of 

a Class I area is 1.0 μg/m3.30 (The Project is located within 100 kilometers of five 

Class I areas, and just outside of 100 kilometers from Joshua Tree National Park.31) 

26 Id. at pp.75-76. 

27 U.S. Environmental Protection Agency, New Source Review Workshop Manual, Prevention of 

Significant Deterioration and Nonattainment Area Permitting, Draft, October 1990; cited pages 

attached as Exhibit 1. 

28 NSR Manual, Table C-4, p. C.28, see Exhibit 1. 

29 Ibid. 

30 Ibid. 

31 Statement of Basis, p. 20. 
July 7, 2008 

Page 10 

1994-034a

 

The EPA opted to use the PM10 surrogacy approach for analyzing PM2.5 

impacts. Under the PM10 surrogacy approach, PM10 is used as a surrogate for 

PM2.5. Practically, this means that PM10 emissions are calculated and modeled to 

determine ambient PM10 concentrations and these are compared to PM10 

thresholds, in this case, the PM10 SILs. The EPA did not mention the 24-hour and 

annual PM10 SILs and instead notes that SILs for PM2.5 have not yet been 

established.32 The EPA failed to identify that the modeled 24-hour PM10 ambient 

air quality concentrations of 6.1 μg/m3 by far exceed the Class II PM10 SIL of 5.0 

μg/m3 established for a 24-hour period. 

Because EPA followed the surrogacy approach for PM2.5, it must finish what 

it started. The EPA must model 24-hour PM10 ambient concentrations with the 

24-hour PM10 SIL to determine the significance of the Project. Using the 24-hour 

PM10 SIL to determine significance of maximum project impacts is analogous to the 

use of the PM10 significant emissions rate to determine whether PSD applies for 

PM2.5. The EPA used the PSD significant emissions rate to determine PSD 

applicability for the Project,33 but failed to explain why the PM10 SILs are not 

equally applicable for determining significance. 

Under the PM10 surrogacy approach, EPA should have required the 

Applicant to conduct a full-impact analysis to determine if the Project plus existing 

sources would cause a significant ambient impact anywhere, including whether it 

would cause or contribute to a violation of any NAAQS or PSD increment, among 

others. As the area where the Project is located is nonattainment for PM10, any 

increase in PM10 will contribute to a NAAQS violation and thus any increase in 

PM10 emissions is per se a significant impact. Thus, the Application is incomplete. 

The EPA must rescind the Application Completeness Determination and require 

that the Applicant complete a full-impact analysis. 

Further, the EPA has recently proposed three different options for Class I 

and Class II SILs for PM2.5.34 The proposed Class II SIL options for a 24-hour 

period are 5.0, 4.0, and 1.2 μg/m3. The modeled Project emissions exceed all three of 

32 Statement of Basis, p. 19. 

33 Statement of Basis, Table 3, p. 9. 

34 Environmental Protection Agency, 40 CFR Parts 51 and 52, [EPA-HQ-OAR-2006-0605; FRL-8470-

1], RIN 2060-AO24, Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 

2.5, Micrometers (PM2.5) – Increments, Significant Impact Levels (SILs) and Significant Monitoring 

Concentration (SMC). 
July 7, 2008 

Page 11 

1994-034a

 

the proposed options for the 24-hour Class II SIL. Therefore, Project emissions are 

significant no matter which option of the proposed SILs will be promulgated. The 

corresponding annual SIL options are 1.0, 0.08, and 0.3 μg/m3. If the latter option 

were promulgated, annual Project impacts, estimated at 0.3 μg/m3 would also be 

significant. The proposed Class I SIL options for a 24-hour period are 0.08, 0.24, 

and 0.07 μg/m3. Several maximum modeled concentrations would exceed the 

proposed 0.07 and the 0.08 μg/m3 SIL in the Cucamonga, San Gorgonio, and San 

Gabriel Wilderness Areas.35 Thus, when using the new PM2.5 SILs, Project 

impacts are also significant. 

Finally, as discussed below, the Applicant underestimated PM10 (as a 

surrogate for PM2.5) emissions because it failed to include in its emissions 

calculations fugitive dust emissions from wind erosion of the solar field and 

unpaved roads and from entrained road dust from operations and maintenance 

vehicles traveling on unpaved roads on site. Thus, the PM2.5 emissions will likely 

exceed the 24-hour PM2.5 NAAQS. 

D. Fugitive Dust PM2.5 Emissions from the Project May Result in 

a Violation of the 24-Hour National Ambient Air Quality 

Standard for PM2.5 

In addition to PM2.5 emissions from the Project’s fossil-fuel powered 

stationary equipment and the cooling tower, the Project would also result in 

substantial fugitive dust particulate matter emissions due to wind erosion of the 

250-acre graded solar field during construction and operation of the Project and the 

two 20-acre and 30-acre graded construction laydown areas. The Applicant intends 

to use a chemical dust suppressant on the graded areas during construction, but did 

not provide information on dust control of the graded solar field during its 

operational phase.36 Even if the use of dust suppressants were intended, they have 

been found to have little efficacy at suppressing small respirable dust particles. 

Further, while chemical dust suppressants have a relatively high initial efficiency, 

35 Sara Head, ENSR, Letter to Ed Pike, U.S. Environmental Protection Agency, San Francisco, CA, 

Subject: Supplement to Application for Prevention of Significant Deterioration Permit for Victorville 

2 Hybrid Power Project (VV2), June 25, 2007; Docket No. EPA-R09-OAR-2008-0406-0009, Table 3. 

36 California Energy Commission, Victorville 2 Hybrid Power Project, Application for Certification 

(07-AFC-1), San Bernardino County, Presiding Member’s Proposed Decision, CEC-800-2008-003-

PMPD, May 2008, p. 115; cited pages attached as Exhibit 2. 
July 7, 2008 

Page 12 

1994-034a

 

estimated to vary between 40 and 98 percent, the control efficiency has been found 

to decay to zero within a few months.37 

In addition, fugitive dust emissions would result from entrained road dust 

emissions from operations and maintenance vehicles driving on the unpaved solar 

field, and entrained road dust from delivery and waste removal vehicles traveling 

on paved and unpaved roads off-site. (The Applicant estimated that the Project 

would have 13 vehicles on site for operations and maintenance, which are estimated 

to drive a total of 79 miles per month on unpaved roads.) 

Major sources that belong to one of the 27 source categories under 40 CFR 

52.21 must include fugitive emissions, i.e. emissions that cannot reasonably pass 

through a stack, chimney, vent, or other functionally equivalent opening, in their 

potential to emit (“PTE”). The source category “Fossil fuel-fired steam electric 

plants of more than 250 million British thermal units per hour heat input” applies 

to the Project.38 Therefore, calculations of Project emissions must include fugitive 

emissions.39 The Applicant’s modeled Project PM2.5 emissions only accounted for 

the Project’s stationary emissions including the CTGs and duct burners, the 

auxiliary heater, the auxiliary boiler, the emergency diesel engine, and the cooling 

tower, but failed to account for fugitive dust particulate matter emissions.40

As mentioned before, modeling of the Project’s stationary source PM10 (as a 

surrogate for PM2.5) emissions resulted in a maximum project impact of 

6.1 μg/m3.41 Added to the background ambient concentration of 26 μg/m3, this 

results in a total impact of 32.1 μg/m3, less than 3 μg/m3 lower than 24-hour NAAQS 

of 35 μg/m3. If the PM2.5 fraction of fugitive dust emissions were included in the 

modeling, the NAAQS would likely be exceeded. Therefore, the Completeness 

Determination must be rescinded and the Applicant directed to estimate fugitive 

emissions and revise the dispersion modeling to include them. 

37 T. Piechota, J. van Ee, J. Batista, K. Stave, D. James, University of Nevada, Las Vegas, and 

U.S. Environmental Protection Agency (Eds.), Potential Environmental Impacts of Dust 

Suppressants: “Avoiding Another Times Beach,” An Expert Panel Summary, Las Vegas, Nevada, 

May 30-31, 2002, Table 5, pp. 16 and 50; cited pages attached as Exhibit 3. 

38 Statement of Basis, p. 8. 

39 40 CFR 52.21(b)(iii)(z). 

40 See, for example, AFC, p. 6.3-66. 

41 Statement of Basis, Table 7, p. 20. 
July 7, 2008 

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IV. THE EPA FAILED TO DETERMINE THAT PM2.5 EMISSIONS FROM 

THE PROJECT WOULD BE SIGNIFICANT 

 For purposes of the Project’s PSD review for PM2.5, the EPA determined 

that the use of PM10 as a surrogate for PM2.5 was appropriate.42 Accordingly, the 

analysis of Project impacts on ambient air quality relied on modeling of estimated 

PM10 emissions.43 For a 24-hour averaging period, maximum project impacts from 

all Project sources were estimated at 6.1 μg/m3 of PM2.5 (on a PM10 as a surrogate 

basis). On an annual basis, maximum Project impacts were modeled at 0.3 μg/m3.44

Based on these modeled maximum impacts, the EPA concluded that operation of 

Victorville II would not cause a violation of the PM2.5 NAAQS.45 There are a 

number of problems with the EPA’s analyses and conclusions and the Applicant’s 

supporting documents, as shown below. 

 A. Modeled PM2.5 Emissions from the Project’s Stationary 

 Sources Exceed the PM10 Significant Impact Level 

The first step in determining whether a source would cause significant 

deterioration of air quality is to compare maximum modeled ambient air 

concentrations of attainment pollutants to established significant impact levels 

(“SILs”), also called significance levels. A SIL for a given criteria pollutant and 

averaging period is defined as the ambient concentration produced by a source’s 

emissions below which the source is assumed to have a less-than-significant impact 

on air quality. 

The SILs for emissions of SO2, PM10, NOx, CO, and O3 in Class II areas can 

be found in the EPA’s NSR Manual,46 Table C-4.47 The SIL for PM10 established 

42 Statement of Basis, p. 9. 

43 Statement of Basis, p. 9 and footnote 15, p. 20. 

44 Statement of Basis, Table 7, p. 20; Sara Head, ENSR, Letter to Ed Pike, U.S. Environmental 

Protection Agency, San Francisco, CA, Subject: Supplement to Application for Prevention of 

Significant Deterioration Permit for Victorville 2 Hybrid Power Project (VV2), June 25, 2007; Docket 

No. EPA-R09-OAR-2008-0406-0009; Table 2, p. 5. 

45 Statement of Basis, p. 19. 

46 U.S. Environmental Protection Agency, New Source Review Workshop Manual, Prevention of 

Significant Deterioration and Nonattainment Area Permitting, Draft, October 1990; cited pages 

attached as Exhibit 1. 

47 NSR Manual, Table C-4, p. C.28, see Exhibit 1. 
July 7, 2008 

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for a 24-hour period is 1.0 μg/m3 for areas located within 100 kilometers of a Class I 

area.48 The Project is located within 100 kilometers of five Class I areas, and just 

outside of 100 kilometers from Joshua Tree National Park.49 The PM10 SIL on an 

annual basis is also 1.0 μg/m3.50 The EPA failed to identify that the modeled 24-

hour PM10 ambient air quality concentrations of 6.1 μg/m3 greatly exceeded the 

PM10 SIL of 1.0 μg/m3 established for a 24-hour period. The EPA made no mention 

of the 24-hour and annual PM10 SILs, but instead noted that SILs for PM2.5 have 

not yet been established.51 

Because EPA followed the surrogate approach for PM2.5, the EPA should 

have compared modeled 24-hour PM10 emissions with the 24-hour PM10 SIL to 

determine significance for impacts on ambient air quality from Project emissions. 

Using the 24-hour PM10 SIL to determine significance of maximum project impacts 

is analogous to the use of the PM10 significant emissions rate to determine whether 

PSD applies for PM2.5. The EPA used the PSD significant emissions rate to 

determine PSD applicability for the Project,52 but failed to explain why the PM10 

SILs are not equally applicable for determining significance. 

 B. Fugitive Dust PM2.5 Emissions from the Project May Result in 

 a Violation of the 24-Hour National Ambient Air Quality 

 Standard for PM2.5 

In addition to PM2.5 emissions from the Project’s fossil-fuel powered 

stationary equipment and the cooling tower, the Project will also result in 

substantial fugitive dust particulate matter emissions due to wind erosion of the 

250-acre graded solar field and the two 20-acre and 30-acre graded construction 

laydown areas. The Applicant intends to use a chemical dust suppressant on the 

graded areas during construction, but did not provide information on dust control of 

the graded solar field.53 Dust suppressants have been found to have little efficacy 

48 Ibid. 

49 Statement of Basis, p. 20. 

50 NSR Manual, Table C-4, p. C.28; see Exhibit 1. 

51 Statement of Basis, p. 19. 

52 Statement of Basis, Table 3, p. 9. 

53 California Energy Commission, Victorville 2 Hybrid Power Project, Application for Certification 

(07-AFC-1), San Bernardino County, Presiding Member’s Proposed Decision, CEC-800-2008-003-

PMPD, May 2008, p. 115; cited pages attached as Exhibit 2. 
July 7, 2008 

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t 

issions.57

 

at suppressing small respirable dust particles. Further, while chemical dus

suppressants have a relatively high initial efficiency, estimated to vary between 40 

and 98 percent, the control efficiency has been found to decay to zero within a few 

months.54 

In addition, fugitive dust emissions will result from entrained road dust 

emissions from operations and maintenance vehicles driving on the unpaved solar 

field, and entrained road dust from delivery and waste removal vehicles traveling 

on paved and unpaved roads off-site. (The Applicant estimated that the Project will 

have 13 vehicles on site for operations and maintenance, which are estimated to 

drive a total of 79 miles per month on unpaved roads.) 

Major sources that belong to one of the 27 source categories under EPA’s CAA 

regulations at 40 CFR 52.21 must include fugitive emissions, i.e. emissions that 

cannot reasonably pass through a stack, chimney, vent, or other functionally 

equivalent opening, in their potential to emit (“PTE”). The source category “Fossil 

fuel-fired steam electric plants of more than 250 million British thermal units per 

hour heat input” applied to the Project.55 Therefore, calculations of Project 

emissions must include fugitive emissions.56 The Applicant’s modeled Project 

PM2.5 emissions only accounted for the Project’s stationary emissions including the 

CTGs and duct burners, the auxiliary heater, the auxiliary boiler, the emergency 

diesel engine, and the cooling tower, but failed to account for fugitive dust 

particulate matter em

As mentioned before, modeling of the Project’s stationary source PM10 (as a 

surrogate for PM2.5) emissions resulted in a maximum project impact of 

6.1 μg/m3.58 Added to the background ambient concentration of 26 μg/m3, this 

results in a total impact of 32.1 μg/m3, less than 3 μg/m3 lower than 24-hour NAAQS 

of 35 μg/m3. If the PM2.5 fraction of fugitive dust emissions were included in the 

54 T. Piechota, J. van Ee, J. Batista, K. Stave, D. James, University of Nevada, Las Vegas, and 

U.S. Environmental Protection Agency (Eds.), Potential Environmental Impacts of Dust 

Suppressants: “Avoiding Another Times Beach,” An Expert Panel Summary, Las Vegas, Nevada, 

May 30-31, 2002, Table 5, pp. 16 and 50; cited pages attached as Exhibit 3. 

55 Statement of Basis, p. 8. 

56 40 CFR 52.21(b)(iii)(z). 

57 See, for example, AFC, p. 6.3-66. 

58 Statement of Basis, Table 7, p. 20. 
July 7, 2008 

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modeling, the NAAQS would likely be exceeded. Therefore, the Completeness 

Determination must be rescinded and the Applicant directed to estimate fugitive 

emissions and revise the dispersion modeling to include them. 

V. THE PROPOSED PSD PERMIT’S BACT DETERMINATIONS ARE 

INCOMPLETE AND DEFICIENT 

Under the Clean Air Act and its implementing regulations, EPA was required 

to include in the proposed PSD Permit emissions limits consistent with “best 

available control technology” for each pollutant subject to regulation under the 

Act.59 As shown below, the proposed PSD Permit lacks a BACT analysis and permit 

limits for emissions of greenhouse gases. Also shown below, the proposed BACT 

limits for criteria pollutants suffer from a variety of other errors such as the failure 

to follow the top-down BACT procedure. Finally, the proposed emission limits for 

PM10 (as a surrogate for PM2.5) and for CO suffer from the same fundamental 

flaw, i.e. the failure to set a BACT limit based on the maximum degree of reduction 

that is achievable. 

A. The Proposed PSD Permit Lacks a BACT Analysis and Permit 

Limits for Greenhouse Gas Emissions 

The Project will emit greenhouse gases, primarily carbon dioxide (“CO2”) and 

nitrous oxide (“N2O”) from combustion processes, and methane (“CH4”) from 

unburned natural gas due to leakage from the natural gas pipelines. Other 

greenhouse gas emissions associated with the Project include sulfur hexafluoride 

(“SF6”), which is used as a gaseous insulator in the Project’s high-voltage circuit 

breakers, and hydrofluorocarbons (“HFCs”) and perfluorocarbons (“PFCs”), which 

are used in its refrigeration/chiller equipment.60 The Applicant estimated 2,020,664 

metric tons of annual CO2-equivalent emissions of these pollutants from the 

Project’s stationary sources and from circuit breaker leaks.61 

59 See 42 U.S.C. § 7475(a)(4). 

60 See Exhibit 1, pp. 78, 110 and 119-120. 

61 Inland Energy, Inc., Victorville 2 Hybrid Power Project, Responses to CURE Data Requests, Set 2, 

August 2007, pp. AQ-19 – AQ-20; cited pages attached as Exhibit 5. 
July 7, 2008 

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nts. 

o 

 

 It is now beyond dispute that greenhouse gases are pollutants subject to 

regulation under the Clean Air Act.62 Therefore, PSD permits must include a 

BACT analysis and a permit limit for greenhouse gas emissions. The draft PSD 

permit contains neither. Accordingly, the draft permit is deficient and must be 

revised because it omitted a BACT limit for these same polluta

 Clearly, the Project will be a “major emitting facility” as defined by the CAA 

because it is a “fossil-fuel fired steam electric plant” of a size greater than the 

statutory threshold.63 Thus, because the Project will be a “major emitting facility” 

it must incorporate BACT for all regulated pollutants. Accordingly, there is n

technical or legal justification for omitting greenhouse gases from the draft permit’s 

BACT analysis. In fact, the applicant and EPA were required to identify, evaluate, 

and apply available technologies that would control greenhouse gas emissions, but 

the draft permit contains no greenhouse gas emission limits whatsoever. EPA was 

required to impose emission limits for greenhouse gases, and was required to 

include a BACT limit, because Clean Air Act section 165(a)(4) requires BACT “for 

each pollutant subject to regulation” and emitted from regulated facilities such as 

the Project.64 

 EPA has regulated CO2, a primary component of greenhouse gas, under the 

CAA since 1993 when the agency adopted regulations for CAA section 821 requiring 

monitoring, recordkeeping and reporting of facility’s CO2 emissions. Then, in 2007, 

the Supreme Court held that greenhouse gases are “pollutants” under the CAA.65 

In short, greenhouse gases are now a regulated pollutant under section 821(a) of the 

CAA, and EPA is required to impose greenhouse gas BACT emission limits in any 

final PSD permit for the Project. Under section 821(a) and its implementing 

regulations, a “regulated NSR pollutant” is defined as: 

(50) Regulated NSR pollutant, for purposes of this section, means the 

following: 

62 According to the Supreme Court, “greenhouse gases fit well within the Clean Air Act’s capacious 

definition of air pollutant.” Massachusetts v. EPA, 127 S.Ct. 1438, 1460 (2007). 

63 42 U.S.C. § 7479(1). 

64 42 U.S.C. § 7475(a)(4). 

65 Massachusetts v. EPA, 127 S.Ct. at 1462. 
July 7, 2008 

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(i) Any pollutant for which a national ambient air quality standard has been 

promulgated and any constituents or precursors for such pollutants identified 

by the Administrator (e.g., volatile organic compounds and NOx are 

precursors for ozone); 

(ii) Any pollutant that is subject to any standard promulgated under section 

111 of the Act; 

(iii) Any Class I or II substance subject to regulation under or established by 

title VI of the Act; or 

(iv) Any pollutant that otherwise is subject to regulations under the 

Act, except that any or all hazardous air pollutants either listed in section 

112 of the Act or added to the list pursuant to section 112(b)(2) of the Act, 

which have not been delisted pursuant to section 112(b)(3) of the Act, are not 

regulated NSR pollutants unless the listed hazardous air pollutant is also 

regulated as a constituent or precursor of a general pollutant listed under 

section 108 of the Act.66

It is unclear whether EPA omitted greenhouse gas analysis from the SOB 

and an emission limitation in the draft permit simply because EPA has not 

established a major source threshold.67 Nevertheless, limiting BACT 

determinations to those air pollutants for which there is a separate, general 

numerical limitation effectively ignores section (iv) of the above regulation which 

unequivocally aims to encompass all pollutants that are “otherwise subject to 

regulation under the Act.” Thus, as a matter of law, the draft permit and SOB 

which utterly omit any mention, much less analysis, of the project’s CO2 emissions, 

is in direct violation of the Clean Air Act. 

Based on the foregoing, EPA must perform a BACT analysis and set BACTbased emission limits for CO2 and other greenhouse gas emissions from the Project. 

The BACT analysis must include a discussion of available technologies that would 

66 40 C.F.R. § 52.21(b)(50) (emphasis added). 

67 BACT requirements encompass all pollutants subject to regulation under the CAA whether or not 

they are independently subject to NAAQS or other limits. See, e.g., Friends of the Chattahoochee v. 

Georgia Dept of Natural Resources, Docket No. 2008CV146398, p. 7 (June 30, 2008). 
July 7, 2008 

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reduce greenhouse gas emissions. For example, on a per-unit energy basis, the use 

of duct burners is far less efficient than using a larger turbine without duct burners 

or a small micro- or aeroderivative turbine for peaking power. These options would 

produce far less greenhouse gas emissions than the proposed duct-fired system. 

The proposed “major emitting facility” is still the same kind of statutorily defined 

“facility” under the Clean Air Act whether it uses duct burners or not. Accordingly, 

the Project should be prohibited from using duct burners because there is a more 

effective alternative for reducing greenhouse gas emissions. The BACT analysis 

should therefore analyze Project efficiency on a unit-energy basis and potential 

options to increase efficiency such as abandoning the use of duct burners, use of 

thermally more efficient aeroderivative turbines instead of duct burners, requiring 

a higher percentage of solar power generation, use of CO2 capture and storage 

technologies, use of oxy-firing, and other innovative technologies. 

B. The EPA Failed to Follow Its Own Procedures in Establishing 

BACT Limits 

The Statement of Basis provided the definition of BACT under the Clean Air 

Act and outlined the mechanics of the five steps involved in a top-down BACT 

analysis. EPA verified that the five-step top-down procedure has been consistently 

followed by the Environmental Appeals Board in adjudicating PSD permit 

appeals.68 

Unfortunately, beyond this generic explanation, the Statement of Basis did 

not follow the five-step top-down BACT analysis for the Project, but instead merely 

provided short summaries and conclusions for each of the Project’s emission units 

and pollutants. Specifically, EPA omitted the required in-depth analysis and 

support for its conclusions, and as such did not follow the five steps for a Projectspecific top-down BACT analysis.69 As discussed in section I above, the Statement 

of Basis, did not cite to or reference the supporting documents; thus, the analytic 

path EPA traveled to derive its unsupported conclusions is entirely unclear to the 

public. Perhaps, EPA simply relied on the BACT analyses contained in the 

Applicant’s PSD Application, and several later documents, as well as numerous 

documents contained on the California Energy Commission’s website including the 

Preliminary Staff Assessment, the Final Staff Assessment, and an unidentified 

68 Statement of Basis, pp. 10-11. 

69 Statement of Basis, pp. 14-17. 
July 7, 2008 

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“Supplemental Information” document. In any case, members of the public have no 

way of knowing. 

The problem is compounded by the Applicant’s own failure to follow the 

established five-step top-down BACT procedure, rendering the Applicant’s own 

BACT determination fatally flawed. As shown below, there has been no top-down 

BACT analyses for: the CO BACT determination for the CTGs, the PM and PM2.5 

BACT determination for the CTGs, and the BACT determinations for the auxiliary 

boiler, the auxiliary heater, emergency diesel engine, and the firewater pump. 

C. The CO BACT Determination for CTGs Is Flawed 

The Statement of Basis contained the following paragraph as a CO BACT 

analysis for the CTGs: 

Carbon monoxide (CO) occurs due to incomplete combustion of natural gas in 

the gas turbine, and in the duct burners when they are operated. The 

applicant has proposed to install an oxidation catalyst to control CO. The 

application states that the facility will achieve 2.0 ppmvd CO over a 1-hour 

averaging period when it does not use duct burning, excluding startups and 

shutdowns. BACT for periods of startup and shutdown are discussed in 

Section 7.1.4. We believe 2.0 ppmvd CO is the lowest emission rate that has 

been included in a permit for a facility of this type. The application also 

requests a slightly higher 3.0 ppmvd CO emission rate when duct burning is 

used, due to higher CO concentrations from the duct burners. While the 

facilities we reviewed generally have higher emission rates, there are some 

facilities with a 2.0 ppmvd CO limit that applies at all times. We believe that 

the combination of emission rates proposed by the applicant falls within the 

stricter end of the range of emission rates acceptable as BACT for CO, based 

on our review of data in the RBLC. Replacing duct burning with solar energy, 

when available, will reduce the amount of time that the facility would use 

duct burning with the higher CO emission rates.70 

1. The Above CO BACT Determination Did Not Follow the 

Top-down Procedure Established as a Standard for BACT 

Determination 

70 Statement of Basis, Section 7.1.2 Carbon Monoxide, p. 14. 
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 Neither the EPA’s one paragraph CO BACT determination nor the CO BACT 

determination contained in the PSD Application for the Project’s CTGs included any 

of the five steps followed in a top-down BACT analysis, i.e. 1) identify available 

control options; 2) eliminate technically infeasible options; 3) rank the remaining 

control technologies; 4) evaluate the most effective control alternative; and, 5) select 

BACT.71 In fact, neither the Statement of Basis nor the PSD Application even 

mentioned which technologies are available to reduce CO emissions from the CTGs. 

Available control technologies that should have been analyzed include good 

combustion practices, alternatives to duct burning, catalytic oxidation, thermal 

oxidation, and SCONOX. (Presumably, duct burning and the use of solar power 

would occur concurrently during periods of high demand. Therefore, solar energy 

would not reduce the amount of time that the facility would use duct burning in the 

summer, contrary to the EPA’s suggestion. Further additional solar could be 

added.) Instead, the PSD Application’s CO BACT determination contained a “Topdown Ranking of Achievable Control Levels,” which simply excerpted CO permit 

limits for a number of facilities from the South Coast Air Quality Management 

District’s BACT Guidelines and the EPA’s RACT/BACT/LAER Clearinghouse.72 

This approach is inadequate. The provided documents do not discuss which control 

technologies these facilities employ to comply with their CO permit limits.73 EPA’s 

approach was neither legally or technically consistent with the NSR Manual’s 

longstanding methodology. 

The Application’s CO BACT determination proposed CO limits and then 

concluded that the facility would use an oxidation catalyst to comply with the 

proposed limits. As such, the Applicant’s CO BACT analyses omitted explanation of 

how it determined that the use of an oxidation catalyst would constitute BACT, and 

why other control technologies, or combinations of control technologies, would not 

be feasible.74 This “analysis” is insufficient to determine that the proposed permit 

71 New Source Review Workshop Manual, Prevention of Significant Deterioration and 

Nonattainment Area Permitting, Chapter B, (1990); City of Victorville, Application for Prevention of 

Significant Deterioration Permit for Victorville 2 Hybrid Power Project, April 2007, Docket No. EPAR09-OAR-2008-0406-0001, p. 4-4. 

72 Ibid. 

73 Ibid and Appendix B to Application, Control Technology Listings, Docket No. EPA-R09-OAR-2008-

0406-0003, Table B-2. 

74 Ibid. 
July 7, 2008 

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limits are indeed BACT for CO emissions from the CTGs, especially because the 

EPA erred in determining BACT for the CTGs. The Permit and Statement of Basis 

must be revised. 

2. Lower CO Limits Have Been Permitted Under All Firing 

Conditions 

The Draft PSD Permit limits CO emissions from the CTGs to 2.0 ppm when 

the duct burners are not in use and to 3.0 ppm when the duct burners are firing 

based on the use of an oxidation catalyst and averaged over one hour.75 

Other similar combined-cycle projects that incorporate duct firing have been 

permitted at 2.0 ppm with no CO limit adjustment or a lower CO limit when duct 

firing. (See attached Table A-2 for a partial list of these Projects.) In fact, the 

Applicant’s summary of BACT determinations obtained from the EPA’s RBLC 

database shows 11 such determinations.76 The lowest CO limits were permitted for 

Kleen Energy Systems, CT, whose two Siemens SGT6-5000 F turbines were 

permitted at 0.9 ppm CO with the duct burners off and at 1.7 ppm CO when firing 

the 445 MMBtu/hr duct burners.77 The Applicant did not mention the permit limits 

for Kleen Energy Systems. In addition, CPV Warren, VA, was permitted with two 

of either GE7FA, GE207FA, or Siemens STG6-5000F turbines at 1.8 ppm CO with 

the duct burners off and at 2.5 ppm CO with the duct burners firing. Based on the 

Applicant’s RBLC summary table, ten power plants in Arizona, California, Georgia, 

Michigan, Oregon, and Washington have been permitted at 2.0 ppm CO with no CO 

limit adjustment for the duct burners. These include COB Energy Facility, OR, 

Duke Energy Arlington Valley II, AZ, Vernon City’s Malburg Generating Station, 

CA, Magnolia Power Project, CA, and McIntosh Combined Cycle Facility, GA. 

Finally, the BP West Coast Products Cherry Point Cogeneration Project, WA, was 

also permitted at 2.0 ppm under all firing conditions. Several power plants have 

demonstrated compliance with these low permitted limits as discussed below. 

75 Proposed PSD Permit, Condition IX.B and IX.C.1, pp. 4-5. 

76 City of Victorville, Application for Prevention of Significant Deterioration Permit for Victorville 2 

Hybrid Power Project, April 2007, Appendix B, Docket No. EPA-R09-OAR-2008-0406-0003, Table 

B-2. 

77 U.S. Environmental Protection Agency, RACT/BACT/LAER Clearinghouse (RBLC), 15.210 

Natural Gas Fired, Combined-Cycle and Cogeneration(>25 MW). 
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The Applicant’s CO BACT determination for the CTGs merely stated that 

duct burners would emit additional CO, increasing the uncontrolled emission levels 

entering the oxidation catalyst. The Application failed to reasonably explain why 

the Project, with similar turbines, can not comply with the lower limits.78 The 

Statement of Basis, while recognizing that several facilities have been permitted 

with a lower CO limit of 2.0 ppm that applies at all times, including when the duct 

burners are firing, impermissibly rationalized the proposed higher CO limit for the 

Project of 3.0 ppm when the duct burners are firing, on grounds that “the 

combination of emission rates proposed by the applicant falls within the stricter 

range of emission rates acceptable as BACT for CO.”79 However, there is no 

justification for a higher CO limit while duct firing. Clean Air Act section 169(3) 

defines BACT as “an emission limitation based on the maximum degree of reduction 

... achievable for such source,” 80 not a “range of emission rates” as applied by 

the EPA. 

3. Lower CO Emissions Have Been Demonstrated in Practice 

Finally, basing BACT limits on previously permitted limits is a self-fulfilling 

prophecy that contravenes the technology-forcing nature of BACT. A BACT limit 

must represent the lowest limit “achievable” for the source—not the lowest limit 

previously achieved by sources in the past.81 This forward-looking emphasis is the 

“most important” mechanism promoting the Clean Air Act’s “philosophy of 

encouragement of technology development.”82 The BACT standard is intended to 

require use of “the latest technological developments [in pollution control] as a 

requirement in granting the permit,” so as to “lead to rapid adoption of 

improvements in technology as new sources are built,” rather than “the stagnation 

that occurs when everyone works against a single national standard for new 

sources.”83 

78 City of Victorville, Application for Prevention of Significant Deterioration Permit for Victorville 2 

Hybrid Power Project, April 2007, Appendix B, Docket No. EPA-R09-OAR-2008-0406-0003, Section 

4.1.2.2. Top-down Ranking of Achievable Control Levels. 

79 Statement of Basis, p. 14. 

80 See also 40 CFR 52.21(b)(12), emphasis added. 

81 40 CFR 52.21 (b)(12); emphasis added. 

82 S. Rep. No. 95-127 at 18; see also Alabama Power v. Costle, 636 F.2d 323, 372 (D.C. Cir. 1980) 

(noting that Prevention of Significant Deterioration Program is intended to be “technology forcing”). 

83 S. Rep. No. 95-127 at 18. 
July 7, 2008 

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Here, the CO BACT determination impermissibly relied on emission levels 

that have been permitted in the past or demonstrated in the past at other sources. 

The record contained no evidence that an analysis was conducted to determine 

emission levels that are “achievable” with the selected BACT technology, as opposed 

to achieved. The Applicant and the EPA should have collected and evaluated test 

data reported to the EPA under various regulatory programs, discussed technology 

performance and guarantees with vendors, and then made an engineering judgment 

based on physical and chemical principles using this data as to which limits are 

“achievable” for the Project to fulfill the technology forcing nature of BACT. The 

permit limits for plants built in the past serve only as the starting point for the 

BACT analysis for what is achievable for a future plant. Those limits cannot also be 

the end of the BACT analysis; limits achieved in the past are a floor, not the ceiling, 

for the BACT determination of what is “achievable” for a new source. 

For example, CO concentrations of 0.046 and 0.043 ppm at 15% oxygen were 

measured on the two GE Frame 7FA turbines at the Los Medanos Energy Center, 

at full load with duct burners on, during October 2001 compliance testing.84 

CO concentrations of 0.12 and 0.04 ppm were measured on the two SW 501FD 

turbines at the Sutter Power Project, at full load with duct burners on and power 

augmentation operational, during June 2001 compliance testing.85 Numerous such 

source tests demonstrate that much lower CO limits are routinely achieved at other 

similar facilities. The EPA has access to this data and should collect and analyze it 

to make a fresh CO BACT determination that complies with the statutory and 

regulatory definition of BACT which require an emission limit based on the 

maximum degree of reduction that is achievable. 

D. The PM and PM10 (as a Surrogate for PM2.5) BACT 

Determination for CTGs Was Flawed 

According to the Statement of Basis, absent full explanation, no add-on 

particulate emission controls have been demonstrated in practice for this type of 

source, and that BACT for PM and PM2.5 emissions from this Project’s two General 

84 The Avogadro Group, Los Medanos Energy Center Report for Initial Emission Compliance Tests, 

January 22, 2002; attached as Exhibit 6. 

85 The Avogadro Group, Revised Report for Startup Emission Compliance Tests and CEMS Part 60 

and Part 75 RATA, Sutter Power Project, Yuba City, California, January 2002; attached as 

Exhibit 7. 
July 7, 2008 

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Electric (“GE”) 7FA CTGs would be the use of natural gas with a sulfur content of 

0.2 grains per 100 dry standard cubic feet (“g/100 dscf”) or less to limit sulfate 

particulate emissions.86 

1. The PM and PM2.5 BACT Determinations Did Not Follow 

the Top-down Procedure Established as Standard for 

BACT Analyses 

The EPA’s meager BACT analysis for PM and PM2.5 was presumably based 

on the Applicant’s equally short BACT analysis found in a supplement to the PSD 

Application for PM2.5.87 The Applicant’s PM and PM2.5 BACT determinations also 

did not follow the established five-step top-down BACT procedure. (The additional 

supplement to the PSD Application for PM did not contain a BACT analysis, but 

rather relied on the PM2.5 supplement because PM emissions are assumed to be 

equal to the PM10/PM2.5 emissions.88) Based on this scant data, the Statement of 

Basis and the Applicant’s PM2.5 BACT analysis concluded that BACT for both PM 

and PM10 (as a surrogate for PM2.5) emissions from the CTGs is 12.0 pounds per 

hour (“lb/hour”) without the duct burner firing and 18.0 lb/hour with the duct 

burner firing.89 There is no support in EPA’s administrative record for this 

conclusion, as neither the Statement of Basis nor the Applicant’s documents contain 

any discussion of achievable PM10 and PM2.5 emission levels, permitted PM and 

PM10 emission limits at similar facilities, or results of source tests. As such, the 

entire analysis is deficient and flawed and must be redone. 

86 Statement of Basis, pp. 14-15. 

87 Sara Head, ENSR, Letter to Ed Pike, U.S. Environmental Protection Agency, San Francisco, CA, 

Subject: Supplement to Application for Prevention of Significant Deterioration Permit for Victorville 

2 Hybrid Power Project (VV2), June 25, 2007; Docket No. EPA-R09-OAR-2008-0406-0009. 

88 Thomas Barnett, Inland Energy, Inc., Letter to Anita Lee, U.S. Environmental Protection Agency, 

San Francisco, CA, Subject: Supplement to Application for Prevention of Significant Deterioration 

(PSD) Permit for Victorville 2 Hybrid Power Project, January 28, 2008; Docket No. EPA-R09-OAR2008-0406-0010. 

89 Statement of Basis, pp. 14-15; Thomas Barnett, Inland Energy, Inc., Letter to Anita Lee, U.S. 

Environmental Protection Agency, San Francisco, CA, Subject: Supplement to Application for 

Prevention of Significant Deterioration (PSD) Permit for Victorville 2 Hybrid Power Project, January 

28, 2008; Docket No. EPA-R09-OAR-2008-0406-0010. 
July 7, 2008 

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2. Lower PM10 Emissions Limits Have Been Permitted 

A number of natural gas-fired power plants with substantially similar F-class 

turbines have been permitted by the EPA and licensed by the California Energy 

Commission with considerably lower PM10 emissions limits for the CTGs and 

associated duct burners than those EPA proposed here. In California, these 

facilities include the Blythe Energy Project Phase II, the Cosumnes Power Plant 

Phase I, the Los Medanos Energy Facility, the Russell City Energy Center, the 

Moss Landing Power Plant Project, the Metcalf Energy Center, the Mountainview 

Power Plant Project, and the Inland Empire Energy Center. Turbine and duct 

burner characteristics and permit limits for these facilities are summarized in 

attached Table A-1 and some facilities are discussed in more detail below. 

Particularly noteworthy is the Blythe Energy Project Phase II, which 

employed Siemens Westinghouse F-class turbines. This facility was licensed by the 

Energy Commission in 2005 and permitted by the EPA in 2007 with an emission 

limit of 6.0 lb/hour of PM10 emissions per turbine with and without firing the duct 

burners and using natural gas with more than twice as much sulfur content as 

proposed for Victorville II.90,91,92 The Energy Commission required testing of the 

permitted PM10 limits based on EPA Methods 5 and 202,93 the same testing 

methods as proposed for this Project.94 On a unit energy-basis, the Blythe Energy 

Plant is permitted to emit 0.0034 lb/MMBtu of PM10 with the duct burners off and 

0.0031 lb/MMBtu with the duct burners firing, less than half of the PM10 emissions 

the EPA proposed here, i.e. 0.0069 lb/MMBtu with the duct burners on and 0.0083 

lb/MMBtu with the duct burners firing, and determined with the same test 

90 California Energy Commission, Blythe Energy Project Phase II, Application for Certification 

(02-AFC-1), Commission Decision, CEC-800-2005-005-CMF, December 2005, Condition AQ-4.e, p. 35; 

cited pages attached as Exhibit 8. 

91 U.S. Environmental Protection Agency, Region IX, Caithness Blythe II, L.L.C. (Blythe II), 

Authority to Construct, Issued Pursuant to Prevention of Significant Deterioration (PSD) 

Requirements at 40 CFR §52.21, PSD Permit Number SE 02-01, April 25, 2007, Condition D, p. 6; 

cited page attached as Exhibit 9. 

92 Construction of the facility is currently on hold. See California Energy Commission, Energy 

Facility Status, Projects Since 1997, Updated: 6/20/2008; 

http://energy.ca.gov/sitingcases/all_projects.html; attached as Exhibit 10. 

93 The CEC additionally permits the use of CARB Method 5; see Exhibit 8, Condition AQ-4.e, p. 35. 

94 See Exhibit 2, Condition AQ-14.e, p. 38. 
July 7, 2008 

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methods.95 The EPA should explain, based on physical and chemical properties of 

the exhaust gases, why these lower emission levels cannot be achieved at this 

Project. 

3. Lower PM10 Emissions Have Been Demonstrated in 

Practice 

The Cosumnes Power Plant Phase I, which employed two GE 7FA turbines 

with no duct burners, was licensed by the Energy Commission in 2003 with an 

emissions limit of 9.0 lb/hr PM10 per turbine based on an emission factor of 0.00483 

lb/MMbtu.96 The Cosumnes Power Plant Phase I is operational and has 

demonstrated compliance with this emission limit. The most recent stack tests 

measured average PM10 emission rates of 4.0 and 3.3 lb/hr from the two turbines, 

respectively, with EPA Methods 201A and 202. On a unit energy-basis, average 

PM10 emissions were determined to be 0.00235 and 0.00195 lb/MMBtu, 

respectively, less than a third of the proposed PM10 emissions for this Project.97 

The Los Medanos Energy Center, which employed two GE S207FA turbines, 

was initially licensed with PM10 emission limits of 16.3 lb/hr per turbine train with 

and without duct burner operation. In 2006, the project owner requested lowering 

the PM10 permit limits to 9.0 lb/hr based on stack tests repeatedly demonstrating 

PM10 emissions considerably below 9.0 lb/hr. As a result, the Energy Commission 

approved revised turbine PM10 emission limits of 9.0 lb/hr or 0.0040 lb/MMBtu per 

turbine including when the 330 MMBtu/hr duct burner is firing.98

95 Blythe II: (6.0 lb/hr) / (1,776 MMBtu/hr turbine) = 0.0034 lb/MMBtu

(6.0 lb/hr) / (1,776 MMBtu/hr turbine + 132 MMBtu/hr duct burner) = 0.0031 

lb/MMBtu; 

Victorville II: (12.0 lb/hr) / (1,736.4 MMBtu/hr turbine) = 0.0069 lb/MMBtu

(18.0 lb/hr) / (1,736.4 MMBtu/hr turbine + 424.3 MMBtu duct burner) = 0.0083 

lb/MMBtu. 

96 California Energy Commission, Cosumnes Power Plant Project, Sacramento County, Application 

for Certification (01-AFC-19), Commission Decision, P800-03-013, September 2003, Condition AQ-17, 

pp. 27-28; cited pages attached as Exhibit 11. 

97 The Avogadro Group, LLC, Source Test Report, 2007 Emission Compliance Tests, SFA Cosumnes 

Power Plant, Herald, California, March 16, 2007, pp. 4 and 11; document without appendices 

attached as Exhibit 12. 

98 California Energy Commission, In the Matter of: Los Medanos Energy Center, Order No. 07-0523-

4, Order Approving a Petition to Lower the Annual PM10 Emissions Limit for the Facility, Docket 

No. 98-AFC-1C; attached as Exhibit 13. 
July 7, 2008 

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These examples and others given in Table A-1 for similar turbines, including 

other GE Frame 7FA turbines, demonstrate that the proposed PM10 (as a surrogate 

for PM2.5) limits of 12.0 lb/hr without and 18.0 lb/hr with duct burners firing are 

not BACT for the CTGs. As shown for the CO BACT determination, the Applicant 

and the EPA should have collected and evaluated test data reported to the EPA 

under various regulatory programs, discussed technology performance and 

guarantees with vendors, and then made an engineering judgment based on 

physical and chemical principles using this data as to what limits are “achievable” 

for the Project to fulfill the technology-forcing nature of BACT. The failure to fully 

employ the top-down BACT procedures rendered the entire analysis flawed. 

4. Demonstrated In Practice Is the Wrong Standard for 

Emission Control Technologies 

The Statement of Basis states without further discussion that no add-on 

particulate emission controls have been demonstrated in practice. Demonstrated in 

practice is the LAER standard and does not apply to a BACT analysis. A BACT 

technology need only be achievable. 

The NSR Manual sets out a process to determine the technical feasibility of a 

control technology that has not been installed and operated successfully on the type 

of source under review. NSR Manual, Sec. IV.B. If a technology is “available” and 

“applicable” it qualifies as a BACT technology that must be included in Step 2 of the 

top down process. A technology is available if it can be obtained by the applicant 

through commercial channels or is otherwise available within the common sense 

meaning of the term. An available technology is “applicable” if it can reasonably be 

installed and operated on the source type under consideration. A technology that is 

available and applicable is technically feasible. 

There are a number of technologies that meet these criteria that should have 

been evaluated and required as BACT for PM10/PM2.5. These include fabric filter 

baghouses, Pall filters, wet electrostatic precipitators (“Wet ESP” or “WESP”), 99

99 Candidate Stationary and Area Control Measures, Chicago PM2.5 Workshop, June 21, 2007, Tim 

Smith, USEPA at slide 15 (recognizing Wet ESP’s as “innovative PM2.5 controls)”; available at

http://earth1.epa.gov/ttn/naaqs/pm/presents/control_measures_stationary_and_area-tim_smith.ppt. 

See alsoEvaluation of Potential PM2.5 Reductions by Improving Performance of Control Devices: 

Conclusions and Recommendations, Prepared for: U.S. Environmental Protection Agency by E.H. 
July 7, 2008 

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advanced hybrid particulate collectors,100 removal of sulfur from the natural gas 

feed, and use of an ammonia slip cleanup catalyst. Wet electrostatic precipitators, 

for example, are widely used in many industries and many more are considering the 

WESP as the maximum achievable control technology (MACT).” The Completeness 

Determination must be revoked and the BACT analysis for PM2.5 redone to cure 

this serious deficiency. 

5. Proposed Test Methods to Determine Compliance Require 

Lowering the PM and PM10 (as a Surrogate for PM2.5) 

BACT Limits 

The proposed PSD Permit requires determination of compliance with the PM 

and PM10 (as a surrogate for PM2.5) permit limits by measuring PM and PM10 

emissions using EPA’s Reference Methods 5 and 202. In lieu of Method 202, the 

proposed PSD Permit allows the use of EPA Conditional Test Methods for 

particulate matter, i.e. CTM-039 or CTM-040.101 There are a number of problems 

with allowing the Applicant to choose from these test methods. 

First, EPA Conditional Test Method CTM-040 has been superseded by 

OTM27 on May 8, 2008.102,103 Thus, the proposed PSD Permit should be revised to 

refer to OTM27 and its successors, rather than CTM-040. 

Pechan & Associates, Inc., EPA Contract No. 68-D-00-265 at 23 (September 30, 2005) (“Pechan 

Report”); available at http://www.epa.gov/pm/measures/pm25_recommend_2007.pdf (describing Wet 

ESP as an “innovative control system” that “yield[s] higher PM2.5 emissions reductions than the 

methods identified to improve existing control device performance”); CIBO Industrial Emissions 

Control Technology II Conference, August 2 - 4, 2004 Portland, Maine at 6 (explaining that Wet 

ESP’s are an effective control technology for PM2.5: “There are no moving parts in a wet ESP. The 

[fine] particles never really reach the electrode and are constantly washed away by the water flow);” 

available at http://www.cibo.org/emissions/2004/summary.pdf. 

100 Since its original development, the name of this technology has been changed to “Advanced 

HybridTM.” The name was trademarked by W.L. Gore and Associates, Inc. See “Demonstration of a 

Full-Scale Retrofit of the Advanced Hybrid Particulate Collector Technology,” U.S. Department of 

Energy (February 2007); available at

http://204.154.137.14/technologies/coalpower/cctc/PPII/bibliography/demonstration/environmental/ott

er/PPA_Otter%20Tail_PPA_Final%20for%20Posting.pdf. 

101 Proposed PSD Permit, p. 10. 

102 See U.S. Environmental Protection Agency, Conditional Test Methods, CTM-040: “Draft Method 

for Determination of PM10/PM2.5 has been superseded by OTM027”; 

http://www.epa.gov/ttnemc01/ctm.html. 
July 7, 2008 

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Second, the use of these test methods results in considerably different PM10 

measurements for the same source. EPA Method 5 for filterable particulate matter 

and Method 202 for condensable particulate matter are known to overestimate 

PM10 emissions from gas turbines and other fired sources.104,105 Method 5 

measures total particulate matter, rather than PM10, thus overestimating actual 

PM10 emissions. Method 202 overestimates condensable PM10 due to the 

formation of artifacts in the wet impinger train, such as the oxidation of SO2 to 

SO3. The artifact problems with Method 202 can be minimized by selecting options 

listed in the method, such as nitrogen purge, which is required to determine 

compliance for Victorville II.106,107,108 To address these artifact problems, the U.S. 

EPA has developed alternative test method CTM-039 for total PM10, which employs 

a dilution tunnel method and measures both total PM10 and PM2.5, and is 

currently developing an alternate for Method 202.109 

Most stack tests at other facilities in the past used EPA Method 5 and 202 

without the nitrogen purge.110 Thus, the resulting measured emissions are 

artificially high and BACT determinations made using this data report emission 

limits are artificially high. If these facilities were stack-tested with EPA Method 

202 using a nitrogen purge or with CTM-039, lower PM10 emissions rates would be 

measured. These lower PM10 emissions should result in lower BACT emission 

limits. Therefore, the proposed PSD Permit should have established separate 

permit limits for PM10 depending on the test method used to determine compliance. 

103 U.S. Environmental Protection Agency, Determining PM10 and PM2.5 Emissions from 

Stationary Sources (Constant Sampling Rate Procedure), May 8, 2008. 

104 See http://www.epa.gov/ttn/emc/methods/method202.html. 

105 See, for example, G.C. England, Development of Fine Particulate Emission Factors and Speciation 

Profiles for Oil and Gas-fired Combustion Systems, Technical Memorandum: Conceptual Model of 

Sources of Variability in Combustion Turbine PM10 Emissions Data, March, 2004. 

106 See http://www.epa.gov/ttn/emc/methods/method202.html. 

107 U.S. Environmental Protection Agency, Conditional Test Method (CTM) 039, Measurement of 

PM2.5 and PM10 Emissions by Dilution Sampling, (Constant Sampling Rate Procedures), CTM-039 

(04_Rev 2), July 2004. 

108 Proposed PSD Permit, Condition H.d.iv.a., p. 9. 

109 See http://www.epa.gov/ttn/emc/methods/method202.html 

110 See attached Table A-1 and Exhibits 6 and 13. 
July 7, 2008 

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 In addition to the comments on the proposed PM10 BACT limits above, the 

Agency must revise its BACT determination to address the lower emission rates 

that would be achieved when using Method 5 with nitrogen purge or CTM-039. 

E. BACT Determinations for Auxiliary Boiler, Auxiliary, Heater, 

Emergency Engine, and Firewater Pump Are Flawed 

Most of the Applicant’s analyses for the auxiliary boiler, the heat transfer 

fluid (“HTF”) heater, the emergency diesel engine, and the firewater pump engine 

suffer from the same problems as the CO and PM and PM10 BACT analyses for the 

turbines, i.e. the failure to follow a top-down BACT procedure, resulting in failure to 

select proper BACT levels. With the exception of the CO BACT determination for 

the auxiliary boiler and auxiliary heater, the Agency’s and the Applicant’s “BACT 

analyses” consist of one paragraph per unit with no further support for the 

conclusions in the docket. 

 The EPA must revise the PM and PM10 (as a Surrogate for PM2.5) BACT 

Determination for CTGs and recirculate the analysis for public comment. 

VI. THE PROPOSED PSD PERMIT FAILS TO INCLUDE A PERMIT 

LIMIT FOR AMMONIA SLIP 

According to the Statement of Basis, the excess ammonia emissions from the 

CTGs’ selective catalytic reduction (“SCR”) system, the so-called ammonia slip, 

would be limited to 5 ppmvd.111 Yet the proposed PSD Permit did not contain any 

restrictions on the ammonia slip from the SCR. Because ammonia is a precursor to 

PM2.5 particulate matter emissions, the proposed PSD Permit must be revised to 

provide for monitoring and recordkeeping of the ammonia slip. 

VII. THE PROPOSED PSD PERMIT LIMITS ARE NOT ENFORCEABLE 

The proposed permit limits must be enforceable as a practical matter to 

qualify as legitimate restrictions on emissions. Practical enforceability means the 

source and/or enforcement authority must be able to show continual compliance (or 

111 Statement of Basis, p. 14. 
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noncompliance) with each limitation or requirement.112 The proposed PM/PM10 

limits are not practically enforceable because the proposed PSD Permit contains 

inadequate monitoring requirements. 

The EPA has substantial guidance on effectively limiting a source’s potential 

to emit through enforceable permit conditions. Practical enforceability means the 

source must be able to show continuous compliance with each limitation or 

requirement.113 Adequate testing, monitoring, and record-keeping must be included 

in the permit.114 The permit conditions in the proposed PSD Permit provide no 

assurance that the proposed limits are enforceable as a practical matter.115 

 The NSR Manual includes a chapter on “Effective Permit Writing.” This 

chapter explains that emission and operational limits “must be clearly expressed, 

easily measurable, and allow no subjectivity... Such limits should be of a short term 

nature, continuous and enforceable.”116 In addition, an NSR Manual appendix 

further clarifies the meaning of enforceability: 

Compliance with any limitation must be able to be established at any given 

time. When drafting permit limitations, the writer must always ensure that 

restrictions are written in such a manner that an inspector could verify 

instantly whether the source is or was complying with the permit conditions. 

Therefore, short-term averaging times on limitations are essential. 

Emission limits should reflect operation of the control equipment, be shortterm, and, where feasible, the permit should require a continuous emissions 

monitor. Blanket emissions limits alone (e.g., tons/yr, lb/hr) are virtually 

impossible to verify or enforce, and are therefore not enforceable as a 

practical matter. 

112 See, U.S. v. Louisiana-Pacific Corp. 682 F.Supp. 1122 (D. Colorado 1988). 

113 See, e.g., “Guidance on Limiting Potential to Emit in New Source Permitting,” from Terrell F. 

Hunt, Associate Enforcement Counsel, OECA, and John Seitz, Director, OAQPS, to EPA Regional 

Offices, June 13, 1989, attached as Exhibit 14. 

114 NSR Manual, pp. A.5-A.6; see Exhibit 1. 

115 In these comments, the terms “enforceable” and “enforceable as a practical matter” are used 

interchangeably. 

116 NSR Manual, p. H.5; see Exhibit 1. 
July 7, 2008 

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When permits contain production or operational limits, they must also have 

requirements that allow a permitting agency to verify a source’s compliance 

with its limits. These additional conditions dictate enforceability and usually 

take the form of recordkeeping requirements.117

As explained below, the proposed PSD Permit is not enforceable because it 

failed to specify monitoring requirements and did not contain adequate monitoring 

or record keeping to assure continuous compliance. Some of the limits are also not 

enforceable because they are based on long averaging periods and/or do not include 

both an instantaneous limit and an emissions cap. 

 A. The Testing for PM and PM10 Emission Limits for CTGs in the 

 Proposed Permit Is Not Adequate to Assure Continuous 

 Compliance 

The proposed PSD Permit limits PM and PM10 (as a surrogate for PM2.5) 

emissions from the CTGs to 12.0 lb/hr when the duct burners are off and 18.0 lb/hr 

when the duct burners are fired based on a 12-month rolling average to be verified 

with annual performance testing (stack test) and monthly natural gas fuel 

testing.118 This condition as written cannot ensure continual compliance with the 

permit limits. According to the NSR Manual, “BACT emission limits or conditions 

must be met on a continual basis at all levels of operation (e.g., limits written in 

pounds/MMBtu or percent reduction achieved), demonstrate protection of short 

term ambient standards (limits written in pounds/hour) and be enforceable as a 

practical matter (contain appropriate averaging times, compliance verification 

procedures and recordkeeping requirements).”119 

A stack test normally lasts only a few hours (3 to 6 hours) and is conducted 

under ideal, prearranged conditions. Staged annual or other periodic testing is not 

indicative of emissions during routine operation or startups and shutdowns on the 

other 364 days of the year, or 8,750-plus hours. One 3-hour test per year over a 50-

year facility life at 85% capacity amounts to testing only about 0.04% of the 

operating hours. Thus a stack test is not adequate to demonstrate continuous 

compliance. 

117 Ibid, pp. c.3–c.5. 

118 Proposed PSD Permit, Conditions IX.C.1, IX.H.1.a.i, and IX.H.1.d.iv. 

119 NSR Manual, p. B.56; see Exhibit 1. 
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Further, annual stack testing does not capture spikes caused by normal 

process operations. It is well known that “[m]anual stack tests are generally 

performed under optimum operating conditions, and as such, do not reflect the fulltime emission conditions from a source.”120 A widely-used handbook on Continuous 

Emissions Monitoring (“CEMs”) notes, with respect to PM10 source tests, that: “Due 

to the planning and preparations necessary for these manual methods, the source is 

usually notified prior to the actual testing. This lead time allows the source to 

optimize both operations and control equipment performance in order to pass the 

tests.”121 

An annual stack test does not provide any method to assure that the BACT 

limits for PM and PM10 are met on a “continual basis.” The Permit must be revised 

to include an instantaneous permit limit in parts per million (“ppm”) and 

installation of a CEMS for PM and PM10 in the stack to address those periods when 

direct stack testing is not conducted. Annual and quarterly stack testing of the 

CEMS should be performed to demonstrate its performance. 

As discussed, an annual stack test does not provide any method to assure 

that the BACT limits for PM and PM10 are met on a “continual basis.” The Permit 

should be revised to include an instantaneous permit limit (in, for example, 

lb/MMBtu) and installation of a CEMS for PM and PM10 in the stack to address 

those periods when direct stack testing is not conducted. Annual and quarterly 

stack testing of the CEMS should be performed to demonstrate its performance. 

 B. The Proposed Permit Failed to Require Recordkeeping for 

 Hours of Operation for Duct Burners 

The proposed PSD Permit restricted the combined hours of operation for both 

duct burners to 2,000 hours per year per 12-month rolling average in Condition 

C.2.122 Yet, the proposed PSD Permit failed to require any recordkeeping to ensure 

that the 2,000-hour limit for operation of both duct burners is not exceeded. The 

Proposed Permit must be revised to include a requirement for record keeping for 

operations of the two duct burners to be submitted annually to EPA. 

120 40 Fed. Reg. 46,241 (Oct. 6, 1975). 

121 James A. Jahnke, Continuous Emission Monitoring, 2nd Ed., John Wiley & Sons, Inc., New York, 

2000, at p. 241. 

122 Proposed PSD Permit, p. 5. 
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 C. The Proposed Permit Contained Insufficient Monitoring for 

 Cooling Tower Emissions 

The proposed PSD Permit limited cooling tower PM emissions to 1.6 lb/hr 

based on a 0.0005% drift rate with a maximum circulation rate of 130,000 gallons 

per minute and a maximum total dissolved solids (“TDS”) content of 5,000 ppm.123 

The proposed PSD Permit required an annual source test for cooling tower PM 

emissions.124 To demonstrate continual compliance with the PM permit limit, the 

proposed PSD Permit required calculation of the mass emissions rate based on the 

TDS content determined by weekly testing of the blow-down water quality and the 

permitted circulation rate.125 The proposed PSD Permit further required that a 

maintenance procedure be established that shows how often and which procedures 

will be used to guarantee the integrity of the drift eliminators to ensure that TDS 

limits are not exceeded and to ensure compliance with recirculation rates.126 These 

requirements are insufficient to ensure continuous compliance with the proposed 

PM permit limit. 

The EPA must specify the proposed maintenance procedure for establishing 

the integrity of the drift eliminators in a plan subject to public review, as part of the 

permitting process and must require record keeping to assure that the procedure is 

followed. To ensure continuous compliance with the proposed PM permit limit of 

1.6 lb/hr, it is essential to continuously monitor the cooling tower circulation rate 

and TDS in the circulating water, and to require periodic testing of PM emissions in 

the cooling tower drift rate. 

 D. The Proposed Permit Contained No Restrictions on Hours of 

 Operation and No Compliance Testing for Heater, Boiler, 

 Emergency Use Engine, or Fire Water Pump 

The proposed PSD Permit required installation and maintenance of an 

operational non-resettable totalizing mass or volumetric flow meter in each fuel line 

for the heater (Unit D5) and the boiler (Unit D6). In addition, the proposed PSD 

Permit required installation and maintenance of an operational non-resettable 

123 Proposed PSD Permit, Condition IX.F, p. 7. 

124 Proposed PSD Permit, Condition, IX.H.1.v. 

125 Proposed PSD Permit, Condition IX.H.2.a through IX.H.2.c. 

126 Proposed PSD Permit, Condition IX.H.2.d. 
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elapsed time meter for the heater, the boiler, the emergency use engine (Unit D7), 

and the firewater pump (Unit D8).127 The proposed PSD Permit failed to restrict 

the operating hours for any of these units, thus rendering installation of the elapsed 

time meters meaningless. 

Emission estimates for the auxiliary boiler were based on maximum 

operation of 500 hours per year.128 Emission estimates for the auxiliary heater 

were based on maximum operation of 1,000 hours per year.129 Emission estimates 

for the emergency use engine and the fire water pump were based on maximum 

operation of 50 hours per year.130 These maximum hours of operation must be 

written into a permit condition to ensure that actual annual emissions from the 

Project do not exceed permitted annual emissions. 

Beyond requiring installation of the two meters, the Proposed PSD contained 

no monitoring or source testing requirements for any of these four emissions units. 

Installation of fuel and elapsed time meters alone is insufficient to ensure that 

emissions from these units would not exceed the proposed BACT limits. The 

proposed PSD Permit should be revised to contain a permit condition requiring at 

least an initial and annual source test for the heater, boiler, emergency use engine, 

and the firewater pump. 

VIII. THE PROJECT DOES NOT COMPLY WITH THE ENDANGERED 

 SPECIES ACT

 In addition to issuing a PSD permit for the Project, EPA was also responsible 

for initiating formal consultation under the Endangered Species Act with the Fish 

and Wildlife Service (Service) for the federally threatened desert tortoise. Under 

127 Proposed PSD Permit, p. 12. 

128 City of Victorville, Application for Prevention of Significant Deterioration Permit for Victorville 2 

Hybrid Power Project, April 2007, Appendix C, Docket No. EPA-R09-OAR-2008-0406-0004, Table C-5 

“Emissions from Natural Gas Fired Auxiliary Boiler.” 

129 City of Victorville, Application for Prevention of Significant Deterioration Permit for Victorville 2 

Hybrid Power Project, April 2007, Appendix C, Docket No. EPA-R09-OAR-2008-0406-0004, Table C-6 

“Emissions from Natural Gas Fired HTF Heater.” 

130 City of Victorville, Application for Prevention of Significant Deterioration Permit for Victorville 2 

Hybrid Power Project, April 2007, Appendix C, Docket No. EPA-R09-OAR-2008-0406-0004, Table C-7 

“Emissions from Emergency Diesel Generator” and Table C-8 “”Emissions from Firewater Pump 

Diesel Engine.” 
July 7, 2008 

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ESA section 7, all federal agencies must initiate consultation under section 7 

whenever it undertakes an action that “may affect” a listed species or species’ 

critical habitat.131 Because the Project will affect desert tortoise, the Service’s 

formal consultation resulted in a biological opinion and incidental take statement 

issued on January 23, 2008. 

1. The Service Cannot Conclude Formal Consultation Until 

It Has Approved a Final Translocation Plan 

 The biological opinion’s incidental take statement allows the City to “take” 

desert tortoise so long as the City complies with the measures described in the 

biological opinion. The central component of the incidental take statement is the 

Service’s requirement that the City provide a translocation plan to the Service for 

its written approval prior to the onset of ground-disturbing activities.132 According 

to the biological opinion, the City can only avoid unlawful take in violation of ESA 

section 9 if it strictly adheres to a Service-approved translocation plan.133

 Unfortunately, the section 7 consultation process for the Project has been 

deeply flawed from start to finish. First, the Service was asked and consented to 

conducting and completing the section 7 consultation process before the City even 

identified any proposed translocation site options, and well before the public 

comment period for the proposed PSD Permit. This backward process led to the 

Service issuing its final biological opinion and the EPA issuing the proposed PSD 

Permit months before any specific translocation lands have been identified, 

approved and secured. In this way, EPA in its PSD permitting capacity and the 

Service’s biological opinion’s cannot make a finding that only lawful take of desert 

tortoise will occur until the Serviced has a approved a final translocation plan. The 

Service unlawfully allowed the Applicant to defer a final translocation plan until it 

begins project construction. But the Environmental Appeals Board has held that 

ESA section 7 consultation must be concluded before issuance of the final PSD 

permit.134 This action unlawfully presupposed ESA compliance. 

131 50 C.F.R. § 402.14(a). 

132 Biological Opinion for the Victorville 2 Hybrid Power Project, San Benardino County, California 

(1-8-07-F-67), p. 32 (January 23, 2008). 

133 Id. at p. 33. 

134 See In re: Indeck-Ellwood, LLC (Sept. 27, 2006) EAB PSD Appeal No. 03-04, p. 114; see also

Center for Biological Diversity, 198 F.Supp.2d 1139, 1154-56 (D. Arizona 2002). 
July 7, 2008 

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 2. The Federal Agencies Are Required to Prepare NEPA Analysis 

 for this Act

 Second, neither the Service nor EPA has performed any environmental 

analysis of the incidental take statement, and the decision to translocate a listed 

species. The federal agencies must prepare an environmental impact statement 

(“EIS”) under National Environmental Policy Act (“NEPA”). The EIS must look at 

the final translocation plan in connection with impacts to the recipient lands, 

impacts to translocated and residential desert tortoise, along with impacts to 

species and vegetation currently inhabiting the translocation lands. Analyses of 

disease risk, site carrying capacities, food availability, and a guarantee of long term 

site management, are among the considerations that must be investigated, but are 

just examples of impact analyses required under federal law. To date, the City has 

proposed federal, state and private land as potential translocation sites. It is 

incumbent on the federal agencies to properly and fully evaluate all of the 

environmental impacts associated with the various options under consideration 

prior to approving a final translocation plan under ESA section 7. 

 The concerns raised here are not abstract or insignificant. On May 13, 2008, 

the Fish and Wildlife Service voiced concerns regarding the various types of 

translocation sites the City has proposed. In effect, the Service rejected all of the 

City’s translocation options, requesting instead that the City consider translocating 

desert tortoise to areas of critical habitat within desert wildlife management 

areas.135 The problem with this option is it is directly contrary to the existing 

desert tortoise recovery plan which does not recommend translocating tortoises into 

critical habitat areas. Given this contradiction, the Service acknowledged “that the 

existing recovery plan for the desert tortoise recommends against translocating 

desert tortoise into areas that are important for recovery (e.g., critical habitat)”.136 

Still, according to the Service, “the City of Victorville [should] strongly consider 

areas of critical habitat with desert wildlife areas as a translocation site.”137 The 

Service’s May 13 letter did not explain why it was reversing longstanding 

translocation policy, and what effect this about face may have on desert tortoise and 

135 Letter to Gerardo C. Rios Chief, Air Permits Office, Region 9, from Carl T. Benz, Assistant Field 

Supervisor, Fish and Wildlife Service, p.3 (May 13, 2008). 

136 Id. 

137 Id. 
July 7, 2008 

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other environmental considerations for existing critical habitat sites. It appears 

that the service’s translocating to critical habitat lands may be the least harmful 

option available. These issues must be investigated in an EIS subject to public and 

state agency notice and comment. In addition, the staff biologists for the Energy 

Commission and California Department of Fish and Game also raised concerns 

regarding environmental impacts associated with the Service’s biological opinion.138

 An EIS must evaluate impacts associated with all of the various translocation 

options the City has proposed and also include a no action alternative. The City’s 

draft translocation plan acknowledged that an EIS would be required were the 

Service to approve desert tortoise translocation to BLM lands.139 However, the 

draft translocation plan contains an impermissibly cramped interpretation of 

NEPA. In reality, an EIS is required regardless of the particular land use 

designation of any proposed site because the Project is a major federal action under 

NEPA.140 

IX. CONCLUSION 

As shown above and in the supporting documents, the EPA issued its 

Completeness Determination prematurely, rendering the determination fatally 

deficient and thus invalid. Also, the proposed PSD Permit and the supporting 

Statement of Basis must be revised to address the shortcomings described above 

and in the attached documents and re-circulated for public review. The Fish and 

Wildlife Service cannot conclude its section 7 consultation until the Service has 

138 See California Energy Commission’s Evidentiary Hearing Transcript (April 3, 2008); see also 

California Energy Commission’s, Prehearing Conference Transcript (April 1, 2008). 

139 Victorville 2 Hybrid Power Project, Final Desert Tortoise Translocation Plan, p. 44 (June 27, 

2008). 

140 See Ramsey v. Kantor, 96 F.3d 434 (9th Cir. 1996). 
July 7, 2008 

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1994-034a

approved and finalized the desert tortoise translocation plan, the cornerstone of the 

incidental take statement. Finally, the federal agencies were required to prepare a 

NEPA document in connection with the Services section 7 consultation and 

incidental take statement. 

 Sincerely, 

 /s/ 

 Gloria D. Smith 

 

GDS:bh