OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

44) ll-K-1 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 44 of 142 

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BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

In the Matter of: 

North County Resource 

Recovery Associates 

Applicant 

PSD Appeal No. 85-2 

.A,<fO'$l 

ii.!'.,' JAM 2 5" ^ l\;:. REMAND 

In petitions filed pursuant to 40• cTXTTM-4vt9--{~L9.8,5J„, 

Donald J. Wakefield and John R. Leach Jr., jointly, and Stephen 

Isaac and..Richard D. Sauerheb.er, individually, requested review 

of. a Prevention-of Significant Deterioration (PSD) permit < 

determination that will authorize North County Resource Recovery 

Associates (NCRR) to construct a 33 megawatt, 1000 ton per day 

resource recovery facility in San Marcos, California. The 

determination to issue the permit was made on March 22, 1985, 

by the Director, Air Management Division, U.S. Environmental 

Protection Agency, Region IX, San Francisco, California. 

Petitions for review of PSD permits are not usually granted 

unless the permit determination is clearly erroneous or involves 

an exercise of discretion or policy that is important and therefore should be reviewed as a discretionary matter, 40 CFR 

S124.19(a) (1) and (2'). The preamble to the regulations containing 

this standard states that "this power of review should be only 

sparingly exercised (and] . . . most permit conditions should 

be finally determined at the Reqional level. ... " 45 Fed. 

Reg. 33412 (May 19, 1980). The burden of demonstrating that 
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the permit conditions should be reviewed is therefore on the 

petitioners. 

Among the reasons the petitioners present for arantinc review is Region IX's alleged failure to establish emission limitations for all pollutants, including hazardous pollutants, 

that will or could possibly be emitted from the facility; the 

alleged inadequacy of Best Available Control Technology (BACT) 

determinations; the alleged use of-unrepresentative meteorological, data; the contention that the Complex I air dispersion 

model for predicting pollution levels is inappropriate; and 

miscellaneous matters such as the contention that the impact of 

•emissions on vegetation was not properly evaluated. With one 

exception, Region IX has addressed each of petitioners' allegations and has provided rational explanations for not making any 

alterations in its permit determination. The exception concerns 

Region IX's assertion that EPA lacks the authority to "consider" 

pollutants not regulated by the Clean Air Act when making a PSD 

determination. This assertion is correct only if it is read 

narrowly to mean EPA lacks the authority to impose limitations 

or other restrictions directly on the emission of unregulated 

pollutants. EPA clearly has no such authority over emissions of 

unregulated pollutants. Recion IX's assertion is overly broad, 

however, if it is meant as a limitation on EPA's authority to 

evaluate, for example, the environmental impact of unregulated 

pollutants in the course of making a BACT determination for the 

regulated pollutants. EPA's authority in that respect is clear. 

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r 

v. 

Under 5165(a)(4) of the Clean Air Act and the relevant 

regulations a proposed facility is subject to the "best available control technology" (BACT) for each pollutant that is 

regulated by the Act that is emitted from, or which results 

from, such facility in significant amounts, 42 USC §7475(a)(4); 

40 CFR S52.21(i)(1985). As defined in §169(3) the term BACT 

refers to an "emission limitation" that is set on a case-by-case 

basis for regulated pollutants, "taking into account energy, 

environmental, and economic impacts and other costs" associated 

with the particular emission control system that is selected to 

achieve the BACT emission limitation. 42 USC §7479(3) (emphasis 

added); 40 CFR §52.21(b)(12). Hence, if application of a 

control system results directly in the release (or removal) of 

pollutants that are not currently regulated under the Act, the 

net environmental impact of such emissions is eligible for 

consideration in makino the BACT determination. The analysis 

may take the form of comparing the incremental environmental 

impact of alternative emission"control systems with the control 

system proposed as BACT; however, as in any BACT determination, 

the exact form of the analysis and the level of detail reguired 

will depend upon the facts of the individual case. Depending 

rpon what weight is assigned to the environmental impact of a 

particular control system, the control system proposed as BACT 

may have to be modified or be reiected in favor of another system. In other words, EPA may ultimately choose more stringent 

emission limitations for a regulated pollutant than it would 
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otherwise have chosen if setting such limitations would have 

the incidental benefit' of restricting a hazardous but, as yet, 

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unregulated pollutant. 

After reviewing Region IX's responses to petitioners' 

comments and to their petitions for review, it is unclear to me 

whether Region IX has given appropriate consideration to the 

matters just described. Petitioners have expressed understandable frustration at being told, without more, that "EPA 

does not have the authority to consider dioxin or most other 

toxic air contaminants for the purpose of issuing a PSD permit.' 

Accordingly, I am remanding the permit determination to Region 

IX for reconsideration and for action consistent with the foregoina interpretation of EPA's authority to consider unregulated 

pollutants when making PSD determinations. In the meantime a 

ruling on the pending petitions for review will be held in 

abeyance. 

So ordered. 

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Lee M. Thomas 

Administrator 

Dated: 

3 IT H 

W Industry engineers would remain free, of course, to exercise 

their own independent judgment in devising ways to meet any 

such more strinaent emission limitations, provided the eneray, 

environmental and economic impacts associated with the chosen 

control system are not Inconsistent with the corresponding impacts associated with the more stringent emission limitations. 

See In the Matter of CertainTeed Corporation at 5-8, PSD Appeal 

No. 81-2 (Decision of the Administrator, December 21,- 1982). 
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i CERTIFICATE OF .' ERVICE 

I hereby certify that copies of the foregoinq Remand in 

the matter of North County Resource Recovery Project, PSD 

Appeal No. 85-2, were served on the following: 

By 1st class mail, David-P. Howekamp 

postage prepaid: Director 

Air Management Division 

U.S. EPA, Region IX 

215 Fremont Street 

San Francisco, CA 94105 

Donald J. Wakefield 

John R. Leach, Jr. 

7412 Carlina Street 

Carlsbad, CA 92008 

Stephen Issac, Ph.D. 

President 

The Christward Ministry 

20560 Questhaven Road 

Escondido, CA 92025 

Richard D. Sauerheber 

Rees-Stealy Research Foundation 

2001 Fourth Avenue 

San Diego, CA 92101 

, ' Ms. Lorraine Pearson 

Regional Hearing Clerk 

U.S. EPA, Region IX 

215 Fremont Street 

San Francisco, CA 94105 

Richard L. Hopkins 

Project Director 

North County Resource 

Recovery Associates 

1635 S. Rancho Santa-Fe Road 

San Marcos, CA 92069 

Eileen J. Barnhardt 

Secretary to the Chief 

Judicial Officer 

Dated: JUN " 5 1986