p.1 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

63) ll-K-20 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:21 AM Sheet 63 of 142 
i \ >,\ 

* - • 

/r-fd-Si 

P.2 

(Slip Opinion) 

NOTICE: This opinion is subject to formal revision before 

publication. Readers are requested to notify the Environmental 

Appeals Board, U.S. Environmental Protection Agency, Washington, 

D.C. 20460, of any typographical or other formal errors, in order that 

corrections may be made before publication. 

aV'l, ..*« Q • 

BEFORE THE ENVIRONMENTAL APPEALS BOARD 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

In the Matter of: 

Hadson Power 14 - Buena Vista 

Permit No. 21130 

PSD Appeal Nos. 92-3, 92-4 

92-5 

[Decided October 5, 1992] 

REMAND ORDER 

Before Environmental Appeals Judges Nancy B. Firestone, 

Ronald L. McCallum and Edward E. Reich. 
P.3 

HADSON POWER 14 - BUENA VISTA 

PSD Appeal Nos. 92-3, 92-4 92-5 

REMAND ORDER 

Decided October 5, 1992 

Syllabus 

The Southern Environmental Law Center, Qean Air for Rockbridge (CLEAR) and 

the County of Rockbridge have filed petitions seeking review of a Prevention of Significant 

Deterioration (PSD) permit issued to Hadson Power 14 - Buena Vista. The permit was 

issued by the Virginia Department of Air Pollution Control (VDAPC) pursuant to a 

delegation from the U.S. EPA, and thus is considered an EPA-issued permit for purposes 

of appeal. The permit authorizes the construction of a 66.5 megawatt coal-fired electric 

generating plant in Buena Vista, Virginia. The proposed facility is located 15 km north of 

the James River Face Wilderness and 56 km southwest of the Shenandoah National Park. 

The most significant issue raised in the petitions is the rejection by VDAPC of 

adverse impact determinations by the Federal Land Managers (FLMs) of the Wilderness 

and the Park. Other issues raised include the exclusion of sources more than 100 km 

from the class I areas from the increment consumption analysis, exclusion of construction 

emissions from the air quality analyses, the adequacy of the emission limits for NO„ 

coordination of the PSD review with the National Park Service's environmental impaa 

assessment, alleged deficiencies in the notice provided on the draft permit, and various 

air quality modeling issues. 

Held: VDAPC erred in rejecting the FLMs' adverse impact determinations. The 

state based its rejections largely on its interpretation of the burden on the FLMs, which 

interpretations EPA's Administrator specifically found to be invalid in In re Old Dominion 

Electric Cooperative, PSD Appeal No. 91-39 (Adm'r, Jan. 29, 1992). Here, unlike in Old 

Dominion, this error was not harmless because VDAPC has not articulated any alternative, 

legally supportable basis for rejecting the adverse impaa determinations. 

VDAPC also erred in categorically excluding construction emissions from the air 

quality analyses, in failing to give public notice of its intention to use an air quality model 

not previously subjea to public scrutiny, and in providing an incomplete description of 

proposed increment consumption in its public notice of the draft permit. No error is 

found in VDAPC's determination of the NO, emissions limitation, in the exclusion of 

sources more than 100 km from the class I areas from the increment consumption 

analysis, and in the degree of coordination with the National Park Service's environmental 
P.4 

2 HADSON POWER 14 - BUENA VISTA 

review. Review of the air quality modeling issues is denied due to the inadequacy of the 

petitions in stating a basis for review. 

The permit is remanded to VDAPC to perform a substantive review of the 

adverse impaa determinations, to reopen the public comment process, and to address the 

other deficiencies in accordance with this opinion. 

Before Environmental Appeals Judges Nancy B. Firestone, 

Ronald L. McCallum and Edward E. Reich. 

Opinion of the Board by Judge Reich: 

Three petitions have been filed with the Environmental Appeals 

Board seeking review of a Prevention of Significant Deterioration (PSD) 

permit Issued to Hadson Power 14 - Buena Vista ("Hadson Power") for 

the construction ofa 66.5 megawatt coal-fired electric generating power 

plant in Buena Vista, Virginia. Pursuant to a delegation of authority 

from the U.S. EPA, Region III, the Virginia Department of Air Pollution 

Control (VDAPC) issued the final permit on April 18, 1992. Because of 

the delegation, the Virginia permit is considered an EPA-issued permit 

for purposes of federal law (40 C.F.R. §124.41 (1991); 45 Fed. Reg. 

33,413 (May 19, 1980)), and is subjea to review by the Agency under 

40 C.F.R. §124.19 (1991). 

PSD Appeal No. 92-3 was filed by die Southern Environmental 

Law Center (SELC) on behalf of itself and other various groups.

 l One 

of these groups, Clean Air for Rockbridge (CLEAR), and CLEAR's 

president (Michael Lonergan) and treasurer (Saundra Martis), also filed 

a separate petition raising additional reasons to review the permit (PSD 

Appeal No. 92-5). The third petition for review, PSD Appeal No. 92-4, 

was filed by the County of Rockbridge (die "County"). At the request 

of this Board, VDAPC provided a response to die petitions for review 

These groups are the Conservation Council of Virginia, National Parks and 

ConservationAssociation, Virginia Council of Trout Unlimited, Virginia Wildlife Federation, 

Sierra Club, Environmental Defense Fund, The Wilderness Society, Southside Concerned 

Citizens, Clean Air for Rockbridge (CLEAR), and Michael Lonergan and Saundra Martis, 

individually and as president and treasurer of CLEAR, respectively. 
P.5 

HADSON POWER 14 - BUENA VISTA 3 

and submitted relevant portions of die administrative record.

 2 

Pursuant to leave granted by the Board, both SELC and CLEAR filed a 

reply to VDAPC's response. 

Under die rules that govern this proceeding, a PSD permit 

ordinarily will not be reviewed unless it is based on a clearly erroneous 

finding of fact or conclusion of law, or involves an important matter of 

policy or exercise of discretion diat warrants review. See 40 C.F.R. 

§124.19; 45 Fed. Reg. 33,412 (May 19, 1980). The preamble to the 

promulgation of diese rules states that "this power of review should be 

only sparingly exercised," and diat "most permit conditions should be 

finally determined at die Regional [or State] level." Id. The burden of 

demonstrating diat review is warranted is on the petitioner. For the 

reasons set forth below, we conclude diat petitioners have met the 

burden of showing that review of several issues is warranted, and diat 

die permit should be remanded to die state for further action 

consistent with this opinion.

 i 

BACKGROUND 

Under die PSD program, owners or operators of major emitting 

facilities in attainment or unci ass ifiable areas * must obtain a PSD 

permit prior to the construction of diat facility. Clean Air Act (CAA) 

§165, 42 U.S.C. §7475. In May 1988, Hadson Power applied for a PSD 

Each petition will be referred to with reference to the petitioner, e.g., "SELC 

Petition at ." Likewise, VDAPC's responses will be referred to with reference to each 

petitioner, e.g., "Response to SELC Petition at ." Attachments to VDAPC's responses 

will be referred to as "Response to Petitions, Attachment ." 

3

 Due to the extensive briefing of these issues on appeal, further briefing would 

not be helpful See In re Renkiewicx SWD-18, UIC .Appeal No. 91-4, slip op. at n.5 (EAB, 

June 24, 1992) ("Although §124.19 * * * contemplates that additional briefing will be 

submitted upon the grant of a Petition for Review, a direa remand without additional 

submissions is appropriate where, as here, it does not appear that further briefs on appeal 

would shed light on the issues to be addressed on remand."). 

An attainment area is one in which the national ambient air quality standards 

for particular pollutants are met. PSD rules apply to these areas (and to these pollutants) 

to ensure that air quality is maintained. See 40 C.F.R. §52.21(a). PSD rules also apply to 

areas where attainment status cannot be classified. 40 C.F.R. §52.21(i)(3);/n re American 

Re-Fuel Company of Essex County, PSD Appeal No. 86-1, unpub. op. at n.5 (Adm'r, Oa. 

6, 1986). The City of Buena Vista and Rockbridge County are attainment areas for TSP 

and SO„ and are unclassifiable for 0„ CO & NO, See 40 C.F.R. §81.347. 
P.6 

4 HADSON POWER 14 - BUENA VISTA 

permit to build a coal-fired power plant ln Buena Vista, Virginia capable 

of producing 66.5 megawatts of electrical power. The proposed facility 

is located 15 km north of the James River Face Wilderness (die 

"Wilderness") and 56 km southwest of the Shenandoah National Park 

(the "Park"). One of the stated purposes of die PSD program is "to 

preserve, protect, and enhance the air quality in national parks [and] 

national wilderness areas." CAA§l60(2),42U.S.C.§7470(2). Therefore, 

many of these parks and wilderness areas are designated as class I areas 

under CAA §l62(a), 42 U.S.C. §7472(a). As discussed below in more 

detail, class I areas are entided to additional protection under die PSD 

program. Both the Wilderness and die Park are class I areas. 

PSD permit applicants must demonstrate that emissions from 

a proposed facility "will not cause, or contribute to, air pollution in 

excess of," inter alia, certain statutorily allowable increases in pollution 

levels, called "increments." CAA §l65(a)(3). Only small increments are 

available in class I areas. CAA §l63(b)(l); 42 U.S.C. §7473(b)(l). 

Because the proposed facility is located in complex terrain within 100 

km of two class I areas, existing models were determined to be invalid 

for the air quality analysis in this case. EPA approved a hybrid model 

created by Hadson Power from existing models to perform the 

increment consumption analysis. EPA allowed Hadson Power to divide 

the Park into northern and soudiern portions for the increment 

consumption analysis. See Memorandum from Executive Director, 

VDAPC, to Virginia Air Pollution Control Board Members at 5-3 (Mar. 

26, 1992) (Response to Petitions, Attachment IV) (hereinafter "VDAPC 

Memo."). Hadson Power followed VDAPC's policy of examining only 

the effect of increment-consuming sources within 100 km of a class I 

area, and in one instance went beyond die minimum requirements of 

this policy by modeling sources far more dian 100 km from the 

northern portion of die Park. 

EPA has a longstanding policy of using significance levels to 

determine whedier a proposed source will cause or contribute to an 

increment violation. ' According to VDAPC, die net effect of emissions 

5

 See 43 Fed. Reg. 26,398 (June 19,1978) (adopting minimum amount of ambient 

impaa that is significant). These significance levels, however, do not apply to analyses of 

increment consumption in class I areas. Hadson Power requested and received EPA 

(continued...) 
P.7 

HADSON POWER 14 - BUENA VISTA 5 

from Hadson Power's proposed facility and previously permitted 

projects, after considering the offsets provided by Georgia Bonded 

Fibers, Inc. ('Georgia Bonded Fibers"), * is to consume 48 to 91% of 

S02

 7 and 7496 of NOT increments available in the Wilderness, and 69 

to 90% of S02 and 91% of NO, increments available in the southern 

portion of die Park. VDAPC Memo, at 5-2. VDAPC concluded that 

Hadson Power will not cause or contribute significandy to a class I 

increment violation in either area. Id. at 5-10 to 5-12. 

The Qean Air Act also requires that written nodce of a 

proposed PSD permit be provided to die Federal Land Manager (FLM) 

for a class I area that may be affected by emissions from the proposed 

facility. CAA §l65(d)(2)(A). If die increment analysis Indicates no 

violation ofa class I increment, as VDAPC concluded was the case here, 

a permit may be issued unless the FLM demonstrates to die state's 

satisfaction diat die proposed emissions will have an adverse impact on 

air quality-related values (AQRVs) in the class I area. CAA 

§l65(d)(2)(C)(ii). 

As discussed in more detail below, on January 31, 1992, die 

Park FLM

 8 submitted a final adverse Impact determination for Hadson 

Power's draft permit. See Letter from James M. Ridenour, Director, 

National Park Service, to Wallace N. Davis, Executive Director, VDAPC 

'(...continued) 

approval to use significance levels proportional to the class n levels for the analysis of 

increment consumption in the Wilderness and the Park class I areas. See Memorandum 

from John Calcagni, Director, EPA Air Quality Management Division, to Thomas J. Maslany, 

Director, Region HI Air, Radiation and Toxics Division (Sept. 10, 1991) (Response to 

Petitions, Attachment V). 

Hadson Power intends to provide eight percent of its steam generation to 

Georgia Bonded Fibers, a manufacturer located across the Maury River from the proposed 

facility. While operating under this contractual arrangement with Hadson Power, Georgia 

Bonded Fibers has agreed to shut down its boilers, and the resulting emissions reduction 

will partially oBset the emissions from Hadson Power. VDAPC Memo, at 5-34. At the time 

of permit issuance, Hadson Power and Georgia Bonded Fibers were negotiating this 

agreement. Id. These offsets were included in Hadson Power's increment consumption 

analysis in support of its permit application. Id. 

7

 These percentages relate to the different SO, increments with various averaging 

periods. See VDAPC Memo, at 5-11 to 5-12. 

8

 The Park FLM is the Assistant Secretary for Fish and Wildlife and Parks, 

Department of the Interior. 
P.8 

6 HADSON POWER 14 - BUENA VISTA 

(Jan. 31, 1992), SELC Petition, App. D (hereinafter "Park AID"). On 

February 3, 1992, the Wilderness FLM ' also submitted a final adverse 

impact determination for Hadson Power's proposed facility. See Letter 

from Joy E. Berg, Forest Supervisor, Jefferson National Forest, to 

Donald L. Shepherd, Director, Region n, VDAPC (Feb. 3, 1992), SELC 

Petition, App. C (hereinafter "Wilderness AID"). VDAPC rejected the 

FLMs' adverse impaa determinations. 

The final permit allows emissions of 797 tons per year (tpy) for 

NO„ 358 tpy for S02, and 96.5 tpy for volatile organic compounds 

(VOCs). See Permit, Part I, Condition 22, Response to Petitions, Attachment X (hereinafter "Permit"). Hadson agrees to control its NO, emissions through combustion controls and die application of selective 

catalytic reduction (SCR), which VDAPC decided is the best available 

control technology (BACT) for diis pollutant. The permit reflects the 

use of SCR by requiring that the boilers be designed to achieve an 

emission rate of 0.10 lbs/106 Btu. Permit, Part I, Condition 7. 

According to VDAPC, SCR has never been applied ln circumstances like 

Hadson Power's, and to allow for contingencies that may result from 

the application of diis technology, die permit allows NO, emissions of 

0.25 lbs/10* Btu. Permit, Part I, Condition 20. The permit also allows 

review of the NOx emission limit prior to initial issuance of an operating 

permit and each renewal of such permit. Id. 

These appeals followed.

 I0

 The numerous issues raised in this 

appeal may be summarized as follows. First, several issues pertain to 

the increment consumption analysis. SELC maintains that the 

increment consumption analysis is faulty because of VDAPC's policy of 

excluding sources more dian 100 km from a class I area. The County 

contends diat Hadson Power's proposed emissions violate the S02 

increment for the Park. In a related issue, SELC contends diat die 

notice of die public hearing on the draft permit was defective because 

it did not include die predicted increment consumption at die Park. 

CLEAR argues that emissions from the construction of die proposed 

' The Wilderness FLM is the Jefferson National Forest Supervisor in the Forest 

Service, Department of Agriculture. The Wilderness is located in the Jefferson National 

Forest. 

10

 Although VDAPC rejeaed both FLMs'findings, neither FLM sought review of the 

final permit decision under §124.19. 
P.9 

HADSON POWER 14 - BUENA VISTA 7 

facility are required to be included in the air quality analysis. Second, 

several issues pertain to VDAPC's rejection of die adverse impact 

determinations.. SELC contends diat VDAPC's rejection of die FLMs' 

adverse impact determinations is clear error under In re Old Dominion 

Electric Cooperative, PSD Appeal No. 91-39 (Adm'r, Jan. 29, 1992). 

SELC and die County also contend diat VDAPC failed to seriously 

consider or direcdy address die FLMs' specific determinations. Third, 

SELC asserts diat the permit does not reflect emission limits based 

upon BACT for NOT. Fourth, SELC and die County contest the 

adequacy and reliability of the modeling and air quality analysis 

submitted by Hadson Power in support of its permit application. Lasdy, 

the County and CLEAR argue that the permit should not be issued until 

die National Park Service completes its environmental review of a 

proposed easement linking the proposed facility and Georgia Bonded 

Fibers. 

ANALYSIS 

I. Increment Consumption Analysis 

The Clean Air Act requires all PSD permit applicants to show 

that emissions from die proposed facility "will not cause, or contribute 

to, air pollution in excess of any * * * maximum allowable increase 

* * * for any pollutant." CAA §l65(a)(3).

 li

 As noted above, these 

maximum allowable increases are called "increments." The Act also 

contains provisions which discuss die relationship between this 

requirement as it relates to class I areas and die affirmative 

11

 Section l65(d)(2)(C)(i) of the CAA also requires an increment consumption 

analysis. It provides that when an FLM "files a notice alleging that emissions from a 

proposed * * * facility may cause or contribute to a change in the air quality in [a class 

I area], a permit shall not be issued unless the [applicant] demonstrates that emissions 

of particulate matter and sulfur dioxide will not cause or contribute to concentrations 

which exceed the maximum allowable increases for a class I area." SELC contends that 

the Park's September 25,1990 letter to VDAPC was notice for the purposes of this seaion. 

SELC Petition at 24, n.14. In other words, SELC contends that the Park FLM's September 

25, 1990 letter triggered an obligation for Hadson Power to perform an increment 

analysis. We cannot address this issue, as the September 25, 1990 letter is not in the 

record before us. In any event, Hadson Power was required to perform an increment 

consumption analysis under CAA §l65(a)(3). and there has been no showing that this 

analysis would have been any different if performed pursuant to CAA §165(d)(2)(C)(i). 
P.10 

8 HADSON POWER 14 - BUENA VISTA 

responsibility of FLMs to protect the air quality-related values of such 

areas. Section 165(d)(2)(C), provides in part: 

(ii) In any case where die Federal Land Manager 

demonstrates to die satisfaction of the State that die 

emissions from such facility will have an adverse impact 

on the air quality-related values (including visibility) of 

such lands, notwithstanding die fact that the change in 

air quality resulting from emissions from such facility 

will not cause or contribute to concentrations which 

exceed die maximum allowable increases for a class I 

area, a permit shall not be issued. 

(iii) In any case where the owner or operator of such 

facility demonstrates to die satisfaction of the Federal 

Land Manager, and die Federal Land Manager so certifies, diat die emissions from such facility will have no 

adverse impaa on the air quality-related values of such 

lands (including visibility), notwithstanding die fact 

that die change in air quality resulting from emissions 

from such facility will cause or contribute to 

concentrations which exceed the maximum allowable 

increases for class I areas, the State may issue a permit. 

Thus, the increment analysis determines who has the burden of 

demonstrating whether diere is an adverse impact on air quality-related 

values and to whose satisfaction die demonstration must be made. If 

the analysis demonstrates an increment violation, die applicant bears 

the burden of demonstrating that die proposed facility will not have an 

adverse impact. If an increment violation is not established, die FLM 

bears the burden of demonstrating diat die proposed facility will have 

an adverse impact. 

VDAPC policy is "that sources beyond 100 kilometers from class 

I areas do not consume increment." Response to SELC Petition at 8. 

Therefore, "[l]t has been the consistent policy of the VDAPC to require 

analyses of the cumulative impact due to appropriate class I incrementconsuming sources within 100 km of either of die two class I areas in 

Virginia." Id. Hadson Power performed an increment consumption 

analysis consistent widi VDAPC policy. SELC contends diat diis policy, 
P.11 

HADSON POWER 14 - BUENA VISTA 9 

by excluding sources beyond 100 km, fails to consider all incrementconsuming sources. SELC represents that both die VDAPC and FLMs 

agree that a substantial portion of the air pollution problem at die two 

class I areas results from transport from sources more than 100 km 

away from those areas, and SELC asserts that some of diose sources 

clearly consume class I increment. SELC Petition at 24-25. According 

to SELC, Hadson Power cannot demonstrate whedier it will violate an 

increment without considering these sources, and therefore VDAPC 

clearly erred ln issuing the permit based on diis allegedly incomplete 

increment analysis. 

SELC disputes VDAPC's assertion diat its policy is consistent 

with the limitations of air quality modeling and exceeds die 

requirements of many other states. SELC lists a few states that it says 

routinely model increment-consuming sources beyond 100 km. SELC 

argues that VDAPC's "categorical determination diat sources beyond 100 

km are not class I increment-consuming sources is clearly illegal and 

contrary to EPA policy." SELC Petition at 25. 

VDAPC explains and defends its policy as follows: 

The DAPC policy that sources beyond 100 kilometers 

from Class I areas do not consume increment is not 

contrary to law and policy. It has been the consistent 

policy of the VDAPC to require analyses of the 

cumulative impact due to appropriate Class I 

increment-consuming sources within 100 km of either 

of the two Class I areas in Virginia. This is done using 

EPA-approved models and techniques. The models 

used are widely understood by experts in the field to 

overpredict pollutant concentrations at great distances 

(in excess of 50 km). It is the VDAPC's opinion that 

cumulative Class I impact analyses should be restricted 

to increment consuming sources within 100 km of 

Class I areas. The above-described policy was carefully 

designed to be conservative, that is, designed to 

overestimate increment consumption in order to 

provide as much protection of the Class I increment as 

is reasonable. 
P.12 

10 HADSON POWER 14 - BUENA VISTA 

Response to SELC Petition at 8. 

Botii SELC and VDAPC discuss die Administrator's recent 

decision in Old Dominion, supra. In that case, petitioners (including 

SELC) challenged a permit issued by VDAPC to Old Dominion because, 

among other reasons, Old Dominion did not perform an increment 

analysis relative to impacts at the Park. Old Dominion will be located 

approximately 135 km from the Park's nearest boundary. VDAPC 

indicated that no demonstration was required since its policy is to 

require a class I increment analysis only for sources proposing to locate 

within 100 km of a class I area. In upholding VDAPC's action, die 

Administrator noted that the demonstration at die Wilderness, which is 

closer to Old Dominion's proposed location and dierefore potentially 

subject to even greater adverse impacts, showed diat class I increments 

would not be violated diere. The Administrator also mentioned as a 

consideration "diat EPA has not issued any final guidance diat would 

contravene the State's policy." Old Dominion, unpub. op. at 6. In a 

footnote to this statement, the Administrator said: 

Draft guidance released by EPA in October 1990 and 

distributed to die States recommends analysis beyond 

100 kilometers when there are potential impacts on a 

class I area. While this guidance has not yet become 

final, it reflects EPA's concern that increments analysis 

include class I areas when there are reasonable 

questions about a proposed facility's impacts on such 

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

same weight as a binding Agency position and does not 

prohibit the States from adopting dieir own policies 

that are consistent with the Clean Air Act and 

applicable regulations. Nevertheless, EPA's draft policy 

reflects the Agency's latest thinking on when it is 

appropriate to require increment analyses for class I 

areas, and is based upon die availability and feasibility 

of modeling tools for assessing such impacts. For this 

reason, Virginia should consider reexamining its 

current policy. 

Old Dominion, unpub. op. at n.6. 
P.13 

HADSON POWER 14 - BUENA VISTA 11 

SELC, in its petition, focuses on die Administrator's advice to 

Virginia to reexamine its current policy. VDAPC, on the other hand, 

focuses on the statement that as a draft policy, the 1990 draft guidance 

does not have die same weight as a binding Agency position and does 

not prohibit states from adopting dieir own policies consistent with die 

Act and implementing regulations. 

The issue presented in Old Dominion was somewhat different 

than the issue presented here. In Old Dominion, the issue was 

whether a proposed source more than 100 km from a class I area 

needed to do an increment analysis. Here, the issue is whether, when 

a proposed source locating within 100 km of a class I area does its 

increment analysis, it must consider odier sources more than 100 km 

from the class I area. However, the underlying technical issues, relating 

to the likelihood of a substantial impact on a class I area of a source 

more than 100 km away and die accuracy of modeling at such 

distances, are essentially die same. 

We find die Old Dominion decision conclusive as to the effect 

of the 1990 draft guidance, which continues to remain in draft form. 

For the reasons stated in die footnote in Old Dominion previously 

quoted, die draft guidance does not provide a basis for overturning the 

state's action. 

However, SELC also argues that the VDAPC policy is contrary 

to current EPA policy, not just the draft guidance discussed in Old 

Dominion. In support of its position, SELC quotes from diree documents. 

The first document cited is the preamble to the 1978 PSD 

regulations. In discussing comments received on die "Guideline on Air 

Quality Models," one issue identified was whether the modeled estimate 

of source impact should be limited to a certain distance or a minimum 

numerical impact or both. In addressing this issue, the document says: 

[T]he Administrator intends to limit generally the application of air quality models to a downwind distance of 

no more dian 50 kilometers. This is because 

dispersion parameters commonly in use are based on 

experiments relatively close to sources, and extending 
P.14 

12 HADSON POWER 14 - BUENA VISTA 

these parameters to long downwind distances results 

in great uncertainty as to the accuracy of the model 

estimates at such distances. Also, since the air quality 

impact of many sources falls off rapidly to insignificant 

levels, EPA does not intend to analyze the impact of a 

source beyond die point where the concentrations 

from the source fall below certain levels (which are 

generally based on die Class I increments). 

43 Fed. Reg. 26,398 (June 19, 1978). 

The preamble then states, in the language dted by SELC: 

However, since the 1977 Amendments provide special 

concern for Class I areas, any reasonably expected 

impacts for these areas must be considered irrespective 

of the 50 kilometer limitation or the above significance 

levels. 

Id. 

A second document cited by SELC is EPA's "Guideline on Air 

Quality Models," revised as of July 1986, which states at pages 7-8 that 

"[s]ince in many cases Class I areas may be threatened at distances 

greater than 50 km from new sources," some procedure is needed to 

determine if a significant impact will occur and identify die model to be 

used in such cases. 

Finally, SELC quotes from a 1979 memorandum

 1Z

 which contains the following sentences: 'Very large sources, however, may be 

expected to affect 'air quality related values' at distances greater dian 

100 kilometers. The appropriate Federal Land Manager should be 

notified if such impacts are expeaed on a case by case basis." SELC 

reasons that if the FLM is to be notified, die potential impaa of these 

sources should be assessed dirough modeling. 

12

 Memorandum from David G. Hawkins, Assistant Administrator for Air, Noise, 

and Radiation to Regional Administrators (Mar. 19.1979) (entitled "Notification to Federal 

Land Manager Under Section 165(d) of the Clean Air Act"). 
P.15 

HADSON POWER 14 - BUENA VISTA 13 

VDAPC, in its response to SELC's petition, does not address die 

interpretation or significance of any of these documents but relies solely 

on die rationale for its policy as previously discussed, die lack of 

binding effea of the 1990 draft guidance, die faa that the analysis here 

was consistent with diat of several other sources recendy permitted in 

Virginia none of whose permits were remanded, and diat neidier FLM 

petitioned for review of the permit.

 1J 

We find diat die documents cited by SELC do not clearly 

establish a requirement to model sources beyond 100 km. The 1978 

Federal Register does evidence diat EPA intended die air quality analysis 

for class I areas to extend to "any reasonably expeaed Impacts" without 

regard to die 50 km limit otherwise applicable. However, this preamble 

language is not self-executing and has to be viewed in light of 

subsequendy developed policy and Agency practice. 

EPA's most current "Guideline on Air Quality Models" is the July 

1986 revision (supplemented in 1987), which at Section 7.2.6. states: 

Since in many cases Class I areas may be threatened at 

distances greater dian 50 km from sources, some 

procedure is needed to determine (1) if a significant 

impaa will occur, and (2) identify die model to be 

used in setting an emission limit if die Class I 

increments are threatened (models for this purpose 

should be approved for use on a case-by-case basis as 

required in Section 3.2). This procedure and die 

models seleaed for use should be determined in 

consultation with die EPA Regional Office and die 

appropriate FLM. 

While this guideline recognizes the potential threat to air quality from 

sources beyond 50 km, it only requires that a procedure and models be 

established in consultation with die EPA Regional Office and the 

appropriate FLM. 

1

 Concerning this last argument, see infra note 27. 
P.16 

14 HADSON POWER 14 - BUENA VISTA 

Region UJ, while encouraging the state to consider revising its 

policy, nonetheless appears to have accepted Virginia's policy relative 

to increment analysis as consistent with current federal law and EPA 

policy. " We note that in the Region's comments on the Hadson 

Power draft permit, " the Region did not raise any objection to die 

state's increment analysis. There were extensive discussions between 

the Region and Virginia on modeling issues yet it does not appear diat 

die Region objeaed to die application of Virginia's policy.

 l6

 Under 

diose circumstances, VDAPC satisfied its obligation under current policy 

of consulting with die EPA Regional Office regarding die development 

of procedures and models for considering sources beyond 50 km.

 17 

Finally, while the 1979 memorandum recognizes that very large 

sources more distant dian 100 km can affea AQRVs, this memorandum 

is focused on die process for notifying FLMs and cannot by itself be 

interpreted as requiring inclusion of such sources in the increment 

analysis. 

We recognize that Hadson Power did condua increment consumption modeling including sources far more than 100 km from the 

northern part of the Park.

 18

 This does not change our analysis. The 

fact that a permittee goes beyond the minimum requirements of VDAPC 

policy does not in any way invalidate an odierwise acceptable policy. 

Indeed, it would be poor public policy to create such a strong 

disincentive for going beyond minimum requirements. 

This is consistent with the Administrator's statement in Old Dominion that "EPA 

has not issued any final guidance that would contravene the State's policy." Old 

Dominion, unpub. op. at 6. 

15

 Letter from Bernard E. Turlinslo, Chief, Air Enforcement Branch, Region III to 

Wallace N. Davis, Executive Direaor, VDj\PC (Jan. 31, 1992), Response to Petitions, 

Attachment VII. 

See Response to Petitions, Attachment VII. 

17

 The record is less clear as to VDAPC's consultation with the FLMs. We note, 

however, that this is the most recent in a series of PSD permits issued by VDAPC for 

sources impacting these class I areas. Through the course of these permit proceedings, 

the FLMs have presented their positions to, and engaged in a dialogue with, VDAPC. 

18

 It is not alleged diat sources beyond 100 km were included in the increment 

consumption analyses for the southern portion of the Park or for the Wilderness. As 

noted above, VDAPC concluded that Hadson Power would not violate any increment in 

either the northern or southern portions of the Park or in the Wilderness. 
P.17 

HADSON POWER 14 - BUENA VISTA 15 

Having determined diat Virginia policy does not contravene 

current Agency policy, we would strongly reiterate the Administrator's 

suggestion that Virginia reexamine its current policy, in light of the 

potentially serious consequences to air quality of its exclusion policy. 

We would similarly urge the Agency to move expeditiously to issue its 

final guidance addressing diis concern, which the state, as the Agency's 

delegatee, will be constrained to follow. 

The County contends diat even excluding sources beyond 100 

km, Hadson Power's modeling showed it would contribute to 

violations of die class I three-hour increment for SOz in the Park, and 

dierefore the permit should not have been Issued. Specifically, the 

County contends diat die allowable diree-hour S02 increment for the 

Park is 25 ug/mJ, and diat Hadson Power's modeling showed that it will 

consume 32.1 ug/m3. 

VDAPC does not contest that Hadson Power's preliminary 

modeling prediaed increment violations in the Park. VDAPC 

concluded, however, diat die violations are due primarily to two 

previously permitted but not yet construaed sources, not Hadson 

Power, and diat Hadson Power would contribute only a small amount 

to these violations. Hadson Power requested and received approval 

from VDAPC (and EPA) to condua modeling widi different 

meteorological data. " In addition, because significance levels for 

class I increment consumption had not been established by EPA VDAPC 

proposed, and EPA approved, diat for diis permit, the class I 

significance levels be proportional to those used for class n areas.

 20 

19

 See VDAPC Memo, at 5-4, which states: 

EPA policy normally requires that the applicant (Hadson-14) must use 

its own meteorological data in assessing the effects of multiple 

sources. When Hadson modeled Coors [another incrementconsuming source] • * • emissions using Buena Vista meteorological 

data, increment violations were » • » prediaed. In June 1991 

(VDAPC] proposed to EPA that Hadson be allowed to use 

meteorological data most appropriate to each region of (the Park]; in 

August 1991, EPA agreed to let Hadson model Coors widi Coors 

meteorological data, and die increment violation was resolved. 

20 See supra note 5. 
16 HADSON POWER 14 - BUENA VISTA 

Based on diis analysis, VDAPC concluded diat Hadson Power would not 

contribute significandy to die violation. The County has not 

demonstrated diat diis conclusion Is in error. 

In another issue related to die increment analysis, SELC argues 

that the public notice of the hearing on the draft permit was defective 

because it failed to include die prediaed amount of increment 

consumption ln the Park. (The notice did provide the amount for the 

Wilderness.) VDAPC regulations require that the public notice state "the 

degree of increment consumption that is expeaed from die source." 

Virginia Air Pollution Control Regulations § 102-08-02 (R) (2) (c). VDAPC, 

which does not deny die omission, responds diat the public notice was 

not defective because it presented the worst-case class I increment 

consumption expeaed from Hadson Power's emissions. This worstcase consumption was expeaed in the Wilderness, not die Park. 

According to VDAPC, the "degree of increment consumption that is 

expeaed" does not require numerous increment consumption values 

at various receptors, only the maximum increment consumed. In addition, VDAPC notes diat die actual figures were sent to the FLMs and 

made available at the VDAPC Roanoke office and at local public libraries 

in Buena Visa and Lexington. 

We find the VDAPC's explanation unpersuasive. The Qean Air 

Aa requires meaningful public participation in the PSD permitting 

process. Section 165(a)(2) requires a public hearing allowing for 

interested persons "to appear and submit written and oral presentations 

on the air quality impaa of such source, alternatives thereto, control 

technology requirements, and odier appropriate considerations." In 

implementing this provision, the Agency regulations defining die 

requirements for state PSD plans require the reviewing authority to: 

Notify the public, by advertisement in a newspaper of 

general circulation in each region in which the 

proposed source would be construaed, of die 

application, the preliminary determination, tbe degree 

of increment consumption tbat is expected from tbe 

source or modification, and of die opportunity for 

comment at a public hearing as well as written public 

comment. 
P.19 

HADSON POWER 14 - BUENA VISTA 17 

40.C.F.R. §51.l66(q)(2)(iii) (emphasis added). The state regulation 

cited by SELC is identical to diis federal regulation. 

To allow for meaningful comment, the public must be apprised 

of all of the proposed source's increment consumption as determined 

through the modeling analysis. We do not believe that die phrase 

"degree of increment consumption" can be read as allowing for 

providing data at only one location, albeit the one with the greatest 

projeaed consumption. Different potential commenters may have an 

interest in different areas to be impaaed and would want, and would 

reasonably be entided to, available data on increment consumption at 

die area of their particular concern. Otherwise, their ability to 

comment on the air quality impaa and proposed alternatives would be 

severely limited. While VDAPC indicates diat such data were made 

available at designated locations within the vicinity of the proposed 

plant, the regulation specifically requires these data to be in the public 

notice. VDAPC will be required to provide a new public notice in 

response to the remand ordered by this decision, and such notice 

should detail all of the increment to be consumed by die proposed 

source, including any increment consumed at die Park. 

Finally, CLEAR objects to the permit on the grounds that 

Hadson Power failed to include emissions from the construction of the 

proposed facility in its demonstration that neither a national ambient 

air quality standard or an increment will be exceeded. According to 

CLEAR, inclusion of construction emissions is required by the Clean Air 

Aa and federal and state regulations. 

CLEAR cites section 165(a)(3) of the Qean Air Act, which 

provides diat no major emitting facility may be construaed unless "the 

owner or operator of such facility demonstrates * * * diat emissions 

from construction or operation of such facility will not cause or 

contribute to air pollution in excess of [any applicable PSD increment 

or national ambient air quality standard.]" (Emphasis added.) CLEAR 

also cites Virginia Air Pollution Control Regulations sections 120-08-

02(L) and (B)(3), which respectively require the air quality demonstrations to include "secondary emissions" and define "secondary 

emissions" as "emissions which would occur as a result of the 

construction or operation ofa major stationary source * * * but do not 

come from die major stationary source * * * itself." In addition, CLEAR 
P.20 

18 HADSON POWER 14 - BUENA VISTA 

points to the Clean Air Aa's prohibition of construction, rather than 

just operation, prior to permit issuance as additional authority. 

VDAPC, in its response, states that "[t]here is no requirement 

to include construction site emissions associated widi die proposed 

source in its air quality analysis." Response to CLEAR Petition 1. 

VDAPC further states.-

In addition, die secondary emissions must be specific, 

well-defined and quantifiable. likewise, temporary 

emissions, such as those from construction, would have 

to be quantifiable to be included in any demonstration 

of impaa. EPA guidance does not Include any 

suggested methodology to quantify emissions from the 

temporary construction phase. 

Id. 

Despite VDAPC's rather categorical statement that there is no 

requirement to include construction emissions in the air quality 

analysis, such emissions generally must be considered. In addition to 

die language of section 165(a)(3) itself, this is clearly demonstrated by 

the inclusion of a provision in the PSD regulations allowing, upon 

written request of a governor, the Administrator to exclude from the 

increment analysis "concentrations of particulate matter attributable to 

the increase in emissions from construction or other temporary 

emission-related activities of new or modified sources." 40 C.F.R. 

§52.21(f)(3). There would be no reason to include a provision relating 

to the exclusion of construction emissions unless they were otherwise 

included.

 21 

The obligation to consider construction emissions was also 

clearly articulated in Save tbe Valley, Inc. v. Ruckelshaus, 565 F. Supp. 

709, 710 (D. D.C. 1983) ("Pursuant to the plain language of the statute 

It is unclear whether this potential exclusion could be available here. The 

preamble to the promulgation of this provision indicates that it is applicable only where 

the state has a fully approved PSD program. See 45 Fed. Reg. 52,719 (Aug. 7, 1980). 

However, the regulation on its face is not so limited. In any event, there clearly has been 

no request from the governor, the prerequisite to invoking this provision. 
P.21 

HADSON POWER 14 - BUENA VISTA 19 

and Its obvious intent to regulate pollution attendant to construction 

* * *."). Thus, VDAPC was in error in citing as a basis for exclusion of 

construction emissions the absence of any legal obligation to consider 

diem. 

It is possible that the construction emissions will be in whole 

or in part fugitive in nature.

 a To the extent this is the case, fugitive 

emissions must be included only if quantifiable.

 a VDAPC asserts that 

there is no methodology for quantifying construction emissions. 

However, ln the absence of a detailing of what die construction 

emissions are expeaed to be, it is not possible to determine whedier 

construction emissions at Hadson Power can be properly excluded on 

this basis. 

In addition, 40 C.F.R. §52.21(i)(6) provides as follows: 

The requirements of paragraphs (k), (m) and (o) of 

diis section [relating to source impaa analysis, air 

quality analysis, and additional impaa analysis] shall 

not apply to a major stationary source or major modification widi respea to a particular pollutant, if the 

allowable emissions of that pollutant from the source, 

or the net emissions increase of that pollutant from the 

modification: 

(i) Would impaa no Class I area and no area 

where an applicable increment is known to be violated, 

and 

"Fugitive emissions" are defined as "those emissions which could not reasonably 

pass through a stack, chimney, vent or other functionally equivalent opening." 40 C.F.R. 

§52.21(b)(20). 

23

 See New Source Review Workshop Manual at c.47 (Draft, Oct. 1990) (restating 

current policy that "(t]he applicant must also include any quantifiable fugitive emissions 

from the proposed source or any nearby sources") (emphasis added). We note that 

VDAPC also argues that "secondary emissions" must be quantifiable but we do not believe 

these emissions would necessarily be secondary as opposed to primary. Secondary 

emissions are those "which would occur as a result of the construction or operation of a 

major stationary source * * * but do not come from the major stationary source * * * 

itself." 40 C.F.R. §52.21(b)(20). Here, presumably much of the emissions would come 

from the construction of the facility itself. 
P.22 

20 HADSON POWER 14 - BUENA VISTA 

(ii) Would be temporary. 

Construction emissions can be considered temporary. It is possible that 

because construction emissions are predominately of particulate matter 

and diere have been no concerns about particulate matter impacts 

raised in this appeal, this provision might be applicable. However, in 

the absence of a clear description of proposed construction emissions 

and how diis provision might apply, we cannot sustain VDAPC's action 

based on speculation as to die possible applicability of this provision. 

VDAPC's exclusion of construction emissions based on its 

misreading of its legal obligations, and its generalized assertion that 

such emissions must be and cannot be quantified, cannot be sustained. 

VDAPC, on remand, must supplement die record widi a full description 

of anticipated construction emissions and must either include diose 

emissions in its air quality analysis, or show why they can be properly 

excluded. 

n. Adverse Impact Determinations 

A. Legal Background 

The Qean Air Aa contemplates an active role for FLMs in the 

PSD permitting process. An FLM is entided to notice of a proposed 

PSD permit if emissions from the proposed source may affea the FLM's 

class I area. CAA §165(d)(2)(A). The FLM has an "affirmative 

responsibility to protea" the AQRVs in the class I area. CAA 

§165 (d)(2)(B). The FLM does diis by determining whedier die 

emissions from the proposed source will have an adverse impaa on the 

AQRVs in the class I area. " 

As noted above, the outcome of die increment consumption 

analysis establishes who bears the burden of proving the presence or 

absence of an adverse impaa. According to VDAPC, the increment 

consumption analysis in this case indicates diat Hadson Power's 

As explained with reference to the increment consumption analysis arguments, 

the FLM will have to either establish the existence of an adverse impaa or certify its 

absence, depending upon who bears the burden of proof on this issue. See CAA 

§§l65(d)(2)(Q(u) and (iii). 
HADSON POWER 14 - BUENA VISTA 21 

proposed emissions will not cause or significandy contribute to an 

increment violation. Therefore, in this case, the FLMs bear the burden 

of demonstrating an adverse impaa.25 Under the applicable Qean Air' 

Aa provision, if the FLM demonstrates to the satisfaction of die state

 26 

that emissions from the proposed source will have an adverse impaa 

on the AQRVs in the class I area, the permit shall not be issued. CAA 

§l65(d)(2)(C)(il). 

States do not have unfettered discretion to rejea an FLM's 

adverse impaa determination. Old Dominion, unpub. op. at n.9. If a 

state determines diat an FLM has not satisfaaorily demonstrated an 

adverse impaa on AQRVs from the proposed facility, the state must 

provide a "rational basis" for such a conclusion, "given the FLMS' 

affirmative responsibility and expertise regarding die Class I areas 

within their jurisdiction." 50 Fed. Reg. 28,549 (July 12, 1985). Arbitrary 

and capricious rejections of adverse impaa determinations are not 

sustainable. Old Dominion, unpub. op. at n.9-

B. Tbe Wilderness 

The Wilderness FLM identified water quality as the AQRV that 

would be adversely impaaed by Hadson Power's proposed emissions. 

Specifically, the Wilderness FLM concluded diat based on Hadson 

Power's modeling, the proposed facility's projeaed emissions will 

increase S02 concentrations in the Wilderness by two to three percent, 

which in turn will produce a 0.01 unit decrease in pH and a 1 ueq/1 

decrease in acid neutralizing capacity (ANC) in the Wilderness' streams, 

which are already sensitive to acidification. Wilderness AID at 4. These 

25

 As previously stated, diis permit is being remanded for VDAPC to determine 

whether construction emissions must be included in the air quality analysis. If VDAPC 

determines diat they must be, and if the results of the increment consumption analysis 

show that the proposed facility will cause or significantly contribute to an increment 

violation, Hadson Power will assume the burden of demonstrating to the FLMs the 

absence of an adverse impact. 

Because EPA is the final permitting authority for the Hadson Power facility, 

notwithstanding the delegation to Virginia, it is ultimately EPA's "satisfaction" with the 

FLM's finding that is at issue. See Citizens for Clean Mr v. EPA, 959 F.2d 839 (9th Cir. 

1992) (in reviewing PSD permit issued by delegated state, court focused not on die state 

action but instead on EPA - whether Agency's final decision, in an administrative appeal 

under 40 C.F.R. §124.19, allowing the permit to issue was reasonable). 
P.24 

22 HADSON POWER 14 - BUENA VISTA 

consequences will be particularly adverse in Belfast Creek, a primary 

stream in the Wilderness identified by Forest Service screening criteria 

as having very high acid levels and dius unable to tolerate additional 

sulfur loading. Id. at 5. 

VDAPC rejeaed die Wilderness FLM's adverse impaa determination because the FLM "provided no definitive data as to die specific 

effects that a small change in sulfur deposition, add neutralizing 

capacity, and pH units will have on the streams" in the Wilderness. 

VDAPC Memo, at 5-13, 5-86. In addition, VDAPC expressed its "uncertainty" about some assumptions used in the adverse impaa analysis. Id. 

at 5-88. The only assumption VDAPC singled out is the FLM's 

assumption diat 'all dry/S02 deposited was converted to sulfate which 

affects the acid neutralizing capacity of the soil." Id. 

VDAPC also rejeaed die Wilderness FLM's adverse impaa 

determination on die ground diat die Forest Service criteria for 

determining adverse impacts are inadequate because they fail to 

"include a scientifically accepted minimum impaa below which a 

specific source's contribution would be considered insignificant. This 

is a long-standing fundamental principle of federal and state PSD * * * 

permitting policies and procedures." VDAPC Memo, at 5-88. VDAPC 

further stated diat it cannot accept "the notion diat 'any' emission 

increase and subsequent increase in pollutant deposition is an 

acceptable demonstration of adverse impaa." Id. 

On appeal, SELC contends diat VDAPC rejeaed die Wilderness 

FLM's quantified adverse impaa finding widiout responding specifically 

to it. SELC asserts that because water quality is the AQRV of concern, 

the FLM need not, as VDAPC would require, demonstrate more dian an 

adverse impaa on water quality. In other words, SELC argues that 

having demonstrated an adverse impaa on water quality, the FLM need 

not go any further and demonstrate die effects of that adverse impact 

on water quality. SELC Petition at 3-4. In addition, SELC states that 

VDAPC did not explain how or why the FLM's assumption on sulfur 

deposition invalidated die adverse impaa determination. Id. at 5-6. 

SELC notes that instead of addressing die demonstration of 

adverse impact, VDAPC flady stated that it cannot accept the notion diat 

any increase in pollutant deposition demonstrates adverse impaa. 
P.25 

HADSON POWER 14 - BUENA VISTA 23 

SELC contends die Wilderness FLM specifically quantified die adverse 

impaa, and dius does not base her determination on the assumption 

diat "any" emission increase produces an adverse impaa. SELC Petition 

at 2-7. SELC further contends diat Old Dominion plainly rejeaed 

VDAPC's position that de minimis criteria are required for evaluating an 

adverse impaa determination. Id. at 11-14. In sum, SELC contends 

diat VDAPC erroneously failed to consider die FLM's conclusions. 

Similarly, the County contends diat VDAPC did not seriously consider 

the adverse impaa determinations. VDAPC responds widiout reference 

to Old Dominion by merely repeating its responses to the comments 

on the draft permit.

 27 

We conclude diat VDAPC clearly erred by failing to consider the 

merits of the specific quantified adverse impaa demonstration 

submitted by die Wilderness FLM. Although VDAPC attempts to use 

much of the same reasoning it employed in Old Dominion, we 

conclude that die facts of this case require a different outcome. 

In Old Dominion, as in this case, the Wilderness FLM prediaed 

an adverse impaa on water quality, namely, that die proposed 

emissions would produce a two to nine percent decrease in ANC and 

pH in the Wilderness' streams.

 M VDAPC rejeaed diis finding, 

identifying several reasons why the FLM may have overestimated the 

27

 In addition, VDAPC repeatedly notes (here and widi reference to other 

arguments) that neither FLM petitioned for review of the final permit decision. Although 

VDAPC does not indicate why diis faa is relevant, we assume VDAPC believes that the 

absence of a petition by the FLMs demonstrates acquiescence to issuance of the final 

permit. We disagree widi the inference made by VDAPC from the FLMs' failure to file a 

petition. Neither adverse impaa determination has been withdrawn. Indeed, after the 

final permit was issued, die Wdderness FLM reiterated her concerns expressed in the 

adverse impaa determination. SELC Reply, App. 7. There are many possible considerations diat may affea a FLM's decision whether to file a petition for review, and 

speculation as to those reasons is not productive. Therefore, we find it irrelevant that 

neither FLM petitioned for review of the permit. 

28

 Thus, in Old Dominion, there was no dispute Uiat the Wilderness FLM 

quantified die adverse impact. Instead, the issue was whether this quantified, adverse 

impaa was credible, and VDAPC concluded it was not. 
P.26 

24 HADSON POWER 14 - BUENA VISTA 

impaa of the proposed emissions.

 29

 VDAPC also relied upon the 

absence of guidance as to significance or de minimis levels for 

determining adverse impacts as a basis for rejecting the Wilderness 

FLM's finding. The Administrator plainly rejeaed diis reasoning, stating 

"[njational guidance on de minimis impacts for class I air quality 

related values is in no way a prerequisite to a reasonable determination 

by a permit-issuing audiority that the [FLM] has demonstrated a 

proposed source will have adverse impacts." Old Dominion, unpub. 

op. at n.20. 

VDAPC's reliance in this case upon the reasoning plainly 

rejeaed in Old Dominion is clearly erroneous. VDAPC has not pointed 

to, and we have not found, any authority to indicate diat national 

standards, including a minimum standard, for assessing adverse impacts 

are a "long-standing fundamental principle" of PSD permitting 

procedures. The only authority on this issue, Old Dominion, 

unequivocally indicates die opposite. 

In describing its reasons for rejecting the Wilderness FLM's 

adverse impaa determination, VDAPC stated diat it "cannot accept die 

notion diat 'any' emission increase * * * is an acceptable demonstration 

of adverse impaa." VDAPC Memo, at 5-88. The Wilderness FLM, 

however, does not base her adverse impaa determination on "any" 

emission increase, but on the projeaed impaa of a two to three 

percent increase in SOz concentrations that will result from Hadson 

Power's proposed emissions. VDAPC's reasoning seems to ignore this 

fact, which distinguishes diis case from the Park FLM's adverse impaa 

determination in Old Dominion, where the determination rested on die 

unproven assumption diat any emissions from the proposed facility 

would have an adverse impaa. Old Dominion, unpub. op. at 14. 

The Forest Service has developed criteria for assessing adverse 

impacts, which are detailed in the Wilderness AID. While VDAPC has 

the discretion to accept or rejea an adverse impaa determination 

founded on diose criteria, it must provide a rational basis for doing so 

29

 In sum, these reasons were that the FLM did not supply its calculations until 

after the public comment period, diat modeling conducted by the EPA (RELMAP) showed 

pollutant deposition one-tenth of that estimated by the FLM, and diat another Region had 

questioned a similar analysis in another case. Old Dominion, unpub. op. at 12. 
HADSON POWER 14 - BUENA VISTA 25 

and cannot summarily rejea the determination because die criteria do 

not contain a de minimis impaa or significance level that is not 

required by law. VDAPC's approach of summarily rejecting an adverse 

impaa determination because of the lack of such guidance or criteria 

is an abdication of its responsibility to assess an adverse impaa 

determination, ^ and as such eviscerates some of the class I area 

protection provided by the Qean Air Aa. 

In Old Dominion, VDAPC's reliance on invalid reasoning was 

harmless error because VDAPC also relied upon odier reasonable 

grounds for rejecting the adverse impaa determination, namely that the 

FLM overestimated the impaa of the proposed emissions. Here, unlike 

the situation in Old Dominion, VDAPC has not presented any odier 

reasonable basis for rejecting the Wilderness AID.

 J1 

VDAPC asserts that die Wilderness AID was inadequate because 

it failed to provide "definitive data as to die specific change that a small 

change in sulfur deposition, [ANC] and pH units will have on the 

streams" in the Wilderness. VDAPC Memo, at 5-86. This statement, as 

SELC correcdy notes, fails to acknowledge diat water quality is the 

AQRV of concern. The FLM is required only to state the impaa on the 

AQRV, and demonstrate that it is adverse. In this case, the FLM 

identified and quantified die impaa on the AQRV of concern, water 

quality, by showing that the proposed emissions would increase 

acidification by producing a 0.01 unit decrease in pH and a 1 ueq/1 

decrease in ANC. In addition, die FLM qualitatively described why diis 

impaa is adverse by indicating that streams in the Wilderness are 

already acid sensitive and diat increases in acidification could 

reasonably be expeaed to produce a shift towards more acid tolerant 

species. VDAPC apparendy would require an FLM to quantify the 

adversity produced by an impaa on an AQRV, for example, by 

quantifying the degree of shift to more acid tolerant specifies. This 

30

 See Old Dominion, unpub. op. at 13. 

J l

 Widi respea to the specific grounds relied upon in Old Dominion, {see supra 

note 29), the only one raised in this case concerns the use of RELMAP. SELC argues, and 

VDAPC agrees, that RELMAP is irrelevant on this issue owing to the proximity of the 

proposed source and the Wilderness. In addition, VDAPC states that even though RELMAP 

has been used for other permits, its results were "inconclusive and not a major factor" in 

this case. Response to SELC Petition at 7. 
P.28 

26 HADSON POWER 14 - BUENA VISTA 

would impose a requirement not found in the Clean Air Aa. See CAA 

§l65(d)(2)(C)(u). Therefore, VDAPC erred in rejecting die Wilderness 

AID on this ground. 

VDAPC also expresses an "uncertainty" about some assumptions 

die Wilderness FLM relied upon. VDAPC specifically mentions only one 

assumption, that "all dry deposited S02 was converted to sulfate," which 

affects acidification, and summarily states that this assumption "increases 

the likelihood that the analysis may overestimate tbe pH unit change as 

calculated In the * * * adverse impaa determination." VDAPC Memo, 

at 5-88. VDAPC, however, failed to detail why this assumption was in 

error and how it would lead to overestimation.

 i2 VDAPC does not 

provide an alternative or preferable assumption. This is in stark 

contrast to the scenario in Old Dominion, where Agency modeling 

confirmed diat die FLM overestimated impacts. 

For these reasons, we conclude diat VDAPC clearly erred by 

relying on reasoning rejeaed in Old Dominion and failing to consider 

die merits of the adverse impaa determination as required. Because 

the record shows diat VDAPC did not have any odier dear, supportable 

rationale for rejecting die Wilderness AID, the error is not harmless. 

Consequendy, -we remand this permit to VDAPC for reconsideration of 

the merits of the Wilderness FLM's adverse impaa determination in 

accordance with this opinion. 

SELC raises other issues in its petition diat may reappear in the 

remand proceedings, and dierefore we will briefly address them here. 

SELC contends diat VDAPC's failure to consider the cumulative impaa 

of all previously permitted sources on die class I areas is clear error. 

SELC relies upon the statement in Old Dominion that "in determining 

whedier a proposed source will cause an adverse impaa on visibility, 

the cumulative visibility impacts of the pending PSD applicant and all 

PSD-permitted sources, including diose not yet construaed, must be 

assessed." Old Dominion, unpub. op. at n.24. " SELC contends that 

32

 VDAPC also failed to respond to evidence provided widi die petition diat the 

assumption is a valid one. See SELC Petition, Attachments F and G. 

M In Old Dominion, other PSD permitted sources were examined for their 

cumulative impaa on visibility. SELC argues, and we agree, diat non-visibility AQRVs 

should be similarly assessed. 
P.29 

HADSON POWER 14 - BUENA VISTA 27 

VDAPC failed to meet this requirement because it did not include in the 

cumulative analysis previously permitted sources beyond 100 km of the 

class I areas. These sources were not included because diey were not 

included in Hadson Power's increment modeling. 

VDAPC responds by referring to its increment consumption 

analysis, noting that "it has worked to develop policies and procedures 

designed to ensure consistency and protection of Qass I increment." 

Response to SELC Petition at 4 (emphasis added). VDAPC further 

responds diat its consistent policy has been to "require analyses of the 

cumulative Impaa due to appropriate class I increment-consuming 

sources within 100 km of the Wilderness. Id. (Emphasis added.) 

We find VDAPC's reference to die increment consumption 

analysis unresponsive to the issue of adverse impaa analysis, which, as 

the Qean Air Aa makes plain, is separate.

 M The increment 

consumption analysis focuses on whether and to what extent die 

proposed source will consume any of the available increment. An 

adverse impact, which may exist even if no increment is violated, see 

CAA §l65(d)(2)(C)(ii), focuses on broader concerns, namely, whether 

emissions from the proposed source will have an adverse impaa on 

AQRVs such as visibility or vegetation. 

VDAPC's response indicates diat no sources beyond 100 km of 

the class I areas were included in the cumulative impaa analysis. 

Unlike VDAPC's policy for increment consumption, however, there is no 

100 km cut-off for requiring an adverse impaa determination. See CAA 

§l65(d)(2)(C)(ii). See also, Old Dominion (adverse impaa 

determination submitted for Park, 135 km from facility). VDAPC's 

response indicates diat it also did not consider any non-incrementconsuming source within 100 km of the class I areas, even though such 

sources, if they exist, may contribute to an adverse impaa on the class 

I areas. Accordingly, we conclude diat based on die record before us, 

it is not clear that VDAPC conduaed separate increment consumption 

and adverse impaa analyses. When assessing the adverse impaa 

determinations on remand, VDAPC is required to consider the 

M Indeed, VDAPC relies upon this distinction in its argument that the Park AID 

was properly rejected because class I increment significance levels are not relevant to 

adverse impaa determinations. 
P.30 

28 HADSON POWER 14 - BUENA VISTA 

cumulative impaa of all previously permitted PSD sources on the class 

I area. " 

SELC also asserts that VDAPC erroneously rejeaed die role of 

episodic deposition of sulfur (as the result of storms) in causing an 

adverse impaa. VDAPC responds diat die FLM did not quantify the 

impaa of such episodic deposition. SELC replies that quantification is 

not required because the adverse impaa is quantified and it is "well 

accepted" diat episodic deposition will exacerbate the adverse impaa. 

SELC Petition, at 15. We agree that the FLM has failed to quantify die 

impaa of Hadson Power's proposed emissions in light of storm 

episodes. Although the Wilderness FLM has quantified an impaa from 

the proposed emissions, namely increased sulfur deposition, there has 

been no demonstration as to how or to what extent this impaa would 

be exacerbated by storms. * We rejea SELC's argument diat VDAPC 

erred in this respea. 

In addition, SELC contends diat VDAPC clearly erred by issuing 

the permit without requiring offsets to eliminate the adverse impaa. 

SELC Petition at 18. This argument presupposes that there is an 

adverse impaa to offset, and diat offsets are required by law. SELC 

contends diat because VDAPC "has failed to provide any reasonable 

basis for rejecting the FLM's findings of adverse impact, these findings 

stand." Id. SELC's argument, in essence, is that an odierwise 

unsatisfaaory adverse impaa determination would have to be accepted 

merely because the permitting authority articulated inappropriate 

reasons for rejecting it. We disagree. In such circumstances, a remand 

for reconsideration would be die most appropriate relief. In addition, 

even if an adverse impaa is determined to exist, offsets are not 

required by law, although diey have been recognized as a means to 

This is not to say that there is no reasonable cut-off based on distance, so that 

sources beyond diat distance need not be considered in an adverse impaa analysis. This 

cut-off is best determined by die permitting authority on a case-by-case basis. When 

determining if a source contributes to an adverse impact, the source's distance from the 

class I area is an appropriate consideration. 

** The Wilderness FLM merely asserted diat "[ajcute pulses of sulfate in 

precipitation during storms can be responsible for increases in acidity" and diat 21% of 

the precipitation in the area comes from the direction of the proposed source. Wilderness 

AID at 4. From this, the FLM concludes that Hadson Power's proposed emissions would 

"frequendy add to die acidity of precipitation at die Wilderness." Id. 
P.31 

HADSON POWER 14 - BUENA VISTA 29 

alleviate an adverse impact, thus allowing a permit to issue. See In re 

Multttrade Limited Partnership, PSD Appeal Nos. 91-2 et alia, (Adm'r, 

Remand Order and Dismissal of Petitions for Review, Jan. 21, 1992). 

Accordingly, SELC's argument is without merit. 

C. TbePark 

In September 1990, the Park FLM publicized its preliminary 

conclusion that AQRVs in the Park are currendy experiencing adverse 

impacts, and diat emissions from Hadson Power and odier proposed 

facilities would exacerbate these already adverse conditions.

 57

 On 

January 3, 1992, VDAPC rejeaed diese preliminary determinations, 

largely for the same reasons it rejeaed diem in Old Dominion. M 

In Old Dominion, the Administrator was not persuaded by the 

Park FLM's reasoning "that since certain [AQRVs], visibility primarily, are 

subjea to deterioration in the Park, the addition of new sources of 

pollution * * * will by necessity only exacerbate existing impaired 

conditions." Old Dominion, unpub. op. at 9. The Administrator 

concluded diat the Park FLM had failed to demonstrate a causal link 

between the source and die prediaed impaa. Without this link, the 

Park FLM's determination rested on die unproven and unacceptable 

assumption that any increase in pollutants produces an adverse impaa. 

VDAPC rejeaed modeling performed by the Park on the ground diat it 

overstated impacts. VDAPC instead relied upon modeling performed 

by Region UJ, which did not confirm the Park FLM's findings. Because 

VDAPC did not abuse its discretion in rejecting die adverse impaa 

determination, VDAPC's reliance on other grounds, namely the absence 

of de minimis criteria, was harmless error. 

37

 See 55 Fed. Reg. 38,404 (Sept. 18, 1990). 

38

 SELC also argues that in the January 3, 1992 response to the Park FLM's 

preliminary adverse impaa determination, VDAPC said diat it needs EPA guidance on the 

impaa of the 1990 Qean Air Aa Amendments (the "Amendments") before it can 

determine if there is an adverse impaa on AQRVs in the Park. The Amendments, which 

were enacted prior to the issuance of this permit, are intended to reduce acid deposition 

and ozone pollution, and to increase visibility. SELC argues that VDAPC cannot rely on 

the benefits to be produced by die Amendments as a basis for rejecting an adverse impaa 

determination. Because the statement at issue was made on January 3, 1992, before the 

draft permit issued in this case, and was not made in response to the Park FLM's final 

adverse impaa determination, it is irrelevant to these proceedings. 
P.32 

30 HADSON POWER 14 - BUENA VISTA 

Following the Old Dominion decision, die Park FLM submitted 

a final adverse impaa determination during the public comment period 

on Hadson Power's draft permit. Instead of performing its own 

modeling, die Park FLM relied upon Hadson Power's modeling, which 

shows that die proposed facility will annually contribute as much as .33 

ug/m3 of N02 in the Park.

 39

 This amount is three times greater than 

Virginia's class I increment consumption significance level. According 

to die Park FLM, this quantified ambient impaa on air quality in the 

Park will exacerbate already adverse conditions in the Park. The Park 

FLM described diis impaa qualitatively, concluding that diis amount of 

increase in N02 will: (1) contribute to already high ozone levels in the 

Park, thus impacting ozone sensitive vegetation, (2) deposit additional 

nitrogen in sensitive streams and soils, and (3) exacerbate already 

adverse visibility conditions. Park AID at 1. 

VDAPC agrees that the AQRVs in the Park are currendy 

experiencing adverse impacts. VDAPC Memo, at 5-13. Nevertheless, 

VDAPC rejeaed diis adverse impaa determination on the ground diat 

die Park FLM failed to demonstrate diat Hadson Power would 

significandy worsen the impacts. Id. Specifically, VDAPC noted diat 

"current tools are inadequate to demonstrate individual source 

impacts, especially in light of pollutant contributions from other states," 

and diat "[t]he FLM's position diat any emission increase is 

unacceptable is contrary to the concept of [a] de minimis [impaa] 

which has been part of both the PSD and nonattainment area provisions 

for a number of years." VDAPC Memo, at 5-85 (emphases added). In 

other words, VDAPC argues as it did in Old Dominion that die Park 

FLM failed to provide a link between the proposed facility and die 

prediaed adverse impaa. Addressing die amount of NO-, prediaed to 

reach die Park and die three specific adverse impacts identified by the 

Park FLM, VDAPC concluded that diere is a lack of scientific and EPA 

consensus on assessing ozone impacts due to NOx emissions, and diat 

diis lack of consensus "raises serious questions about the credibility of 

any modeling of point source impacts." VDAPC Memo, at 5-86. 

39

 SELC contends and VDAPC does not dispute that NO, can be used to represent 

all nitrogen compounds. See SELC Petition, at 7 n.5. 
P.33 

HADSON POWER 14 - BUENA VISTA 31 

On appeal, SELC contends diat VDAPC clearly erred in rejecting 

the adverse impaa determination because, in contrast to the situation 

in Old Dominion, the Park FLM did not rely on die assumption diat any 

increase in pollutants produces an adverse impaa. Instead, SELC 

notes, die Park FLM concluded diat Hadson Power's modeled impaa 

on air quality in the park (an annual contribution of .33 ug/m3 NOj), 

will exacerbate already direatened AQRVs in the Park. SELC argues that 

VDAPC erroneously disregarded diis analysis, and relied upon reasoning 

rejeaed in Old Dominion. *° 

VDAPC responds diat "[w]hile air quality modeling performed 

by Hadson does quantify the NOz impaa upon the [Park], the impaa 

cannot be legitimately compared to die class I increment significance 

levels adopted by Virginia." Response to SELC Petition at 2. VDAPC 

further responds diat because significant impaa levels cannot be used 

"in the context of adverse impact, and since the National Park Service 

has not established scientifically accepted minimum impacts below 

which a specific source's contribution can be considered insignificant, -

the [Park FLM's] finding of adverse impaa is clearly based on die 

assumption that any additional impaa is considered adverse." Id. at 3. 

We agree with SELC diat VDAPC clearly erred by failing to 

consider the merits of the particular adverse impaa determination 

submitted by die Park FLM in this case. VDAPC made die same mistake 

here that it made in connection widi die Wilderness AID, apparendy 

hoping for the same results as in Old Dominion despite die explicit 

rejection of some of its arguments in that case and die significant 

factual differences between that case and diis case. 

The most obvious difference is that here, die Park FLM did not 

base his adverse impaa determination on the assumption diat "any" 

increase in pollutants would produce an impaa, but on Hadson 

Power's modeled N02 impaa on Park air quality. Unlike the situation 

in Old Dominion, the Park FLM has attempted to link the emissions 

SELC makes several arguments that apply to VDAPC's rejection of both the Park 

and the Wilderness FLM's adverse impaa determinations. For example, SELC's argument 

that VDAPC should consider the cumulative impaa of all previously permitted facilities 

applies to both adverse impaa determinations. Each of these arguments was addressed 

widi reference to the Wilderness, and diere is no need to repeat that discussion here. 
P.34 

32 HADSON POWER 14 - BUENA VISTA 

from Hadson Power's proposed facility with die prediaed adverse 

impaa. Also, unlike Old Dominion, the Park FLM did not rely on its 

own modeling, which was reasonably rejeaed by VDAPC in Old 

Dominion, but upon Hadson Power's. VDAPC's attempts to discredit 

die modeling for these purposes are not persuasive, because VDAPC 

relied upon Hadson Power's modeling in other respects, and because 

VDAPC failed to explain how or why its doubts about the modeling 

undermine the Park FLM's conclusions. 

We do agree widi VDAPC that references to the significance 

levels for determining increment consumption do not, by themselves, 

establish an adverse impaa.

 4I

 But, die Park FLM does not represent 

diat die impaa on air quality is the adverse impaa. Instead, die Park 

FLM states that AQRVs in the Park are already experiencing adverse 

impaas, a conclusion widi which VDAPC agrees, and diat diese adverse 

impacts will be exacerbated by die prediaed impaa on air quality, 

specifically, the modeled amount of N02 prediaed to reach the Park. 

The adverse impaa presented by the Park FLM in this case is not the 

quantified impaa on air quality itself, but the exacerbation of already 

existing adverse impacts from that air quality impact, which is 

qualitatively described in the Park AID. While these data do not directly 

quantify the adverse impaa on the AQRVs themselves, and dius may be 

entided to less weight dian the data presented in the Wilderness AID, 

they certainly warrant serious substantive consideration. 

At a minimum, to fulfill the statutory objective of providing 

protection to class I areas, VDAPC was obliged to consider the merits 

of this demonstration, and not summarily dismiss it, which VDAPC 

appears to have done by erroneously relying on a position flatly 

rejeaed in Old Dominion, that is, the absence of standards, including 

a de minimis standard, by which to assess the Park FLM's conclusions. 

For the same reasons discussed with reference to the Wilderness AID, 

we conclude diat such reasoning is clearly erroneous. Again, in 

See Memorandum from John Calcagni, Direaor, EPA Air Quality Management 

Division, to Thomas J. Maslany, Director, Region III Air, Radiation and Toxics Division 

(Sept. 10, 1991) (VDAPC's use of class II increment consumption levels for Hadson 

Power's class I increment consumption analysis "does not include their use for 

determining whether a source should condua an adverse impaa analysis for any [AQRV] 

in a class I area, or whether a source would have an adverse impaa on an AQRV). 
P.35 

HADSON POWER 14 - BUENA VISTA 33 

contrast to Old Dominion, this error is not harmless because the record 

does not show an alternative, supportable rationale for rejecting the 

Park AID. Accordingly we direa VDAPC to reevaluate the Park AID on 

remand. 

HI. Best Available Control Technology for NOx 

SELC asserts in its petition that die permit fails to require best 

available control technology (BACT) for emissions of NO,. BACT *2 is 

required by 40 C.F.R. §52.21(j)(2) for each pollutant subjea to 

regulation under die Clean Air Aa that die facility would have die 

potential to emit in significant amounts. There is no dispute that BACT 

is required for NO, emissions from the Hadson Power plant. 

VDAPC determined diat BACT for NOx should be based upon 

the use of selective catalytic reduction (SCR) technology. SELC agrees 

with diat determination and in faa commends VDAPC for that 

selection.

 n SELC's concern is with how die SCR requirement is 

translated into permit terms. 

Part I, Condition 7 of die permit provides diat nitrogen oxide 

emissions shall be controlled by "a continuous coal feed system, staged 

combustion, low excess air, and selective catalytic reduction (SCR)." 

Condition 7 further provides diat die SCR system shall be designed, 

construaed and optimized to achieve a nitrogen oxides emissions rate 

"Best available control technology" is defined in part as: 

an emissions limitation * * * based on die maximum degree of 

reduction for each pollutant subjea to regulation under Aa which 

would be emitted from any proposed major stationary source » • » 

which the Administrator, on a case-by-case basis, taking into account 

energy, environmental and economic impacts and odier costs, 

determines is achievable for such source * * * through application of 

production processes or available methods, systems, and techniques, 

including fuel cleaning or treatment or innovative fuel combustion 

techniques for control of such pollutant. 

40 CF.R. §52 Jl(b)(12). 

43

 SELC Petition at 31. 
P.36 

34 HADSON POWER 14 - BUENA VISTA 

of 0.10 lbs/106 Btu on a 30-day rolling average. Condition 8 provides 

diat: 

In die event diat die nitrogen oxides emission rate 

exceeds 0.10 lbs/106 Btu on a 30-day rolling average, 

the permittee shall do eidier or both of die following, 

as necessary: 

a. Maintain the ammonia-to-nitrogen-oxides mole 

ratio at die design level, provided diat no 

detrimental effea on equipment downstream 

of the SCR system occurs. 

b. Replace and/or add catalyst as necessary to 

achieve a nitrogen oxides emissions limit of 

0.10 lbs/106 Btu on a 30-day rolling average to 

the extent that catalyst replacement or addition 

does not exceed 50 percent in any 3-year 

period. 

SELC does not objea to die 0.10 lbsAO6 Btu design level. 

However, Part I, Condition 20 of die permit establishes the NO, 

emissions limitations applicable to the operation of each primary coal 

boiler as 0.25 lbs/106 Btu, 94.8 lbs/hr as a 30-day rolling average and 

398 tons/tyr as an annual average. In a footnote, this limit is 

charaaerized as a "worst-case" emission limit in the event of marginal 

performance or deterioration of die SCR system. SELC takes exception 

to the 0.25 lbsAO6 Btu emission limitation as not reflecting BACT. 

More specifically, SELC asserts that this limitation "is not the emission 

limitation based on die maximum degree of reduction considering cost 

and technical feasibility."

 44 

SELC points out that other coal-fired boilers have been 

permitted with lower NO, emission rates using either SCR or selective 

non-catalytic reduction (SNCR). Most of diese have been permitted at 

0.17 lbs/106 Btu. SELC further cites as support a letter from EPA Region 

4 4

 SELC Petition at 31. 
P.37 

HADSON POWER 14 - BUENA VISTA 35 

m to VDAPC during die comment period recommending that die 

permit limitation be set at 0.10 lbs/106 Btu or 80% control. (The 0.25 

rate is based on 50% control.)

 4' 

In addition, SELC makes reference to a NOx guideline of 0.15 

lbs/106 Btu for new coal-fired, boilers adopted in June 1991 by the 

Virginia Air Pollution Control Board. SELC states that diis level can be 

consistendy achieved and improved upon. SELC further states that with 

a design limit of 0.1 lbsAO6 Btu, an operating limitation of 0.15 is 

"clearly technically and economically feasible." SELC Petition at 32. 

VDAPC, in its response, stresses that diis is the first application 

of SCR technology to a spreader-stoker boiler. It also notes that SCR 

has not been operated commercially on a coal-fired boiler in the United 

States, although it has been established on pulverized coal-fired boilers 

in Japan and Germany. In light of this, VDAPC asserts that "[t]he risks 

involved in a first-time application necessitate more moderate 

regulation." Response to SELC Petition at 10. 

VDAPC elaborates on its concerns by identifying die following 

as being of primary concern: 

potential differences in the properties of coal 

used overseas and in this country, and 

potential differences in the charaaeristics of 

ash produced by spreader-stoker and 

pulverized coal firing. 

More specifically, VDAPC sates that: 

[T]he ash produced by a spreader-stoker boiler is more 

coarse, causing a higher tendency to blind die SCR 

catalyst. Other differences involve excess air, furnace 

temperature, furnace volume, and heat transfer surface 

arrangement. All of these faaors affect temperature 

4 5

 SELC Petition at 32 and Appendix L (Letter from Bernard E. Turlinsld, Chief, Air 

Enforcement Branch, Region III, to Wallace N. Davis, Executive Direaor, VDAPC (Jan. 31, 

1992)). 
36 HADSON POWER 14 - BUENA VISTA 

and temperature fluctuations within the SCR unit, 

which are critical to optimal SCR performance. 

Response to SELC Petition 10-11. 

Finally, VDAPC argues that the approach taken at Hadson Power 

is "totally consistent" with die precedent set by the Chambers Works 

cogeneration facility in New Jersey, one of the facilities cited in the 

SELC petition. VDAPC explains that since the Chambers Works' boilers 

would have had uncontrolled NO, emissions of 0.27 lbsAO6 Btu and die 

permit sets an emission limitation of 0.17 lbsAO6 Btu, it only requires 

37% NO, removal. At Hadson Power, uncontrolled emissions would be 

at the rate of 0.50 lbsAO6 Btu and the emission limitation is 0.25 lbsAO6 

Btu, thus requiring a 50% reduction. Therefore, the reduction required 

at Hadson Power is greater, on a percentage basis, than at the 

Chambers Works. Response to SELC Petition at 11. 

In its reply to the VDAPC response, SELC indicates diat a permit 

issued to Orlando Utilities Commission's Curtis E. Stanton Energy 

Center Second Unit, issued prior to die Hadson Power permit, also set 

a maximum emission limitation at 0.17 lbsAO6 Btu and diat die issuance 

of this and the New Jersey permits demonstrates that SCR with an 

emission rate of 0.17 lbsAO6 Btu or lower is BACT for the Hadson 

Power plant. 

We note diat die explanation VDAPC gives in its response to the 

petition repeats almost verbatim its response to similar comments 

raised on die draft permit. See Response to Petitions, Attachment IV at 

5-71 to 5-72. SELC was undoubtedly aware of the rationale set forth by 

the VDAPC in its response to comments. Yet, SELC has not explicidy 

addressed die explanation given by VDAPC in either its petition or its 

reply. Most significandy, SELC does not address at all the transferability 

of SCR technology to spreader-stoker boilers. 

As previously noted, die petitioner has the burden of 

demonstrating diat review ofa permit condition is warranted. Recendy, 

diis Board held diat "[t]o satisfy the requirements of 40 C.F.R. 

§124.19(a), it is not enough for [petitioner] to include in its petition for 

review a mere reference to comments made during die comment 

period on die draft permit." In reAdcom Wire, RCRA Appeal No. 92-2, 
P.39 

HADSON POWER 14 - BUENA VISTA 37 

slip op. at 10 (EAB, Sept. 3, 1992). Instead, §124.19(a) requires a 

petitioner to "show why die [State's] responses to the issues [raised in 

the public comment period] are clearly erroneous or Involve important 

policy considerations or exercises of discretion diat should be reviewed." Id. SELC's failure to respond to die primary rationale set 

forth by VDAPC fatally flaws its petition in this regard. As such, review 

of this issue is denied. 

In denying review, we recognize that SELC may ultimately prove 

correa that a level more stringent than 0.25 lbsAO6 Btu can be 

consistendy achieved. Even VDAPC, in its internal documents, seems 

to have concluded diat die use of U.S. coals should not be a significant 

concern. In referring to the Chambers Works project, VDAPC states: 

In issuing the Chambers Works permit, the reviewing 

audiority determined diat die coal to be burned at diat 

facility is not significandy different from the coal being 

burned at successful SCR applications in Germany and 

Japan. The same determination applies to Hadson 

Power, as no specific differences in coal quality have 

been shown. 

In support of this determination, die Department has received correspondence from SCR vendors 

indicting diat die constituents of typical Virginia coal 

are not prohibitive to SCR operation. 

VDAPC Memo, at 5-29. Thus, the larger concern seems to be the 

transferability of SCR technology to a spreader-stoker boiler. In this 

regard, while acknowledging die technical differences between 

pulverized coal and spreader-stoker boilers as previously discussed, 

VDAPC states that "neither the applicant nor the agency's research has 

shown that die gas stream from a spreader-stoker boiler is physically or 

chemically different as to preclude die application of diis technology." 

Id. While this does not direcdy address what level of performance can 

be consistendy maintained, it does give some reassurance as to the 

transferability of the technology. 

We also recognize that die permit requires a review of the NO, 

emission limitation prior to issuance and each renewal of an operating 
P.40 

38 HADSON POWER 14 - BUENA VISTA 

permit. ** It provides that "die Department may revise the NO, 

emissions rate downward to reflea the maximum NO, emissions rate 

that is demonstrated to be consistendy achievable on a 30-day rolling 

average, not including periods of malfunction." Permit, Part I, 

Condition 20. We would expea diat if the performance of Hadson 

Power or any other spreader-stoker boiler demonstrates the 

achievability of a more stringent emission limitation, the current limit 

will be reconsidered and adjusted appropriately.

 47 

In the context of its objections to the NO, emission limitation, 

SELC raises one further point that needs to be addressed. It notes 

diat although die air quality modeling for the Hadson Power plant is 

based on a shutdown of boilers at the Georgia Bonded Fibers plant, the 

permit does not actually require the shutdown of diat plant. Instead, 

it provides that Hadson Power shall cease to operate beyond 90 days 

after commencing operation unless one of the following occurs: 

i. a restriction that renders the existing boilers at 

the host facility inoperable is made federally 

enforceable, or 

ii. the permittee demonstrates diat the 

permittee's facility in concurrent operation 

with die existing boilers does not increase the 

net impaa on air quality. Such demonstration 

shall be done in a manner acceptable to (he 

Department. 

Permit, Part I, Condition 38(d). SELC expresses a concern that if 

Hadson Power were operating at a level below 0.25 lbsAO6 Btu, Georgia 

46

 See Virginia Air Pollution Control Regulations §120-08-04(P)(1) (an operating 

permit may be issued for a term not to exceed five years). 

We note that as to emissions of ammonia, the permit establishes an emission 

limitation but indicates diat lower limits may be imposed "after review of instack-testing 

and optimizing the selective catalytic reduction system." While it is possible such an 

approach could have also been used for NO, emissions, we recognize that this might not 

fully address potential deterioration of die SCR system. We do not find die mechanism 

chosen by VDAPC to deal with the technical uncertainties of application of SCR to 

spreader-stoker technology to be in clear error. 
P.41 

HADSON POWER 14 - BUENA VISTA 39 

Bonded Fibers could start up and emit die difference between Hadson 

Power's operating rate and die 0.25 lb. limit, since the air quality 

analysis was premised on die 0.25 lb. limit. As such, the permit does 

not provide an incentive to minimize emissions.

 tt 

Relative to this condition, SELC also states that it should be 

made more specific. It should either require shutdown of die Georgia 

Bonded Fiber boilers or, in the alternative, be revised to state the total 

limit in terms of emissions rather than "net impaa on air quality," which 

SELC finds to be "vague and undefined." SELC Petition at 33. 

VDAPC provides a response to this Issue in the context of 

addressing a similar comment made by the County. In its response, 

VDAPC indicates that "[n]o regulatory framework is ln place for die 

department to apply an emissions cap to a selea number of facilities in 

attaining the ambient air standards. In addition, VDAPC regulations do 

not allow the operation of Georgia Bonded Fibers to be governed by 

a permit issued to Hadson Power 14 - Buena Vista." Response to 

County Petition at 13-

Conceding to VDAPC that it cannot regulate the Georgia 

Bonded Fibers facility direcdy in the Hadson Power permit, that still 

does not fully respond to the concern raised by the petitioners. 

Clearly, if appropriate, VDAPC can regulate the condua of Hadson 

Power based on whedier the Georgia Bonded Fibers boilers are 

operating, thus addressing the issue of concurrent operation raised by 

the County and SELC (and not specifically addressed by VDAPC). 

While SELC links this issue with die NO, BACT issue, we think 

this linkage is tenuous at best. The BACT limit for Hadson Power is in 

no way dependent upon die availability of offsets at Georgia Bonded 

Fibers. SELC may be assuming that even if the permit contained an 

emission limit of 0.15 or 0.17 lbsAO6 Btu that die provision relating to 

concurrent operation would be die same, thus lowering total emissions. 

However, it is equally possible that modeling widi die lower emission 

limit could reduce or eliminate the need for offsets for NO, entirely, 

48

 A somewhat similar concern is raised by die County. See County Petition at 10. 
P.42 

40 HADSON POWER 14 - BUENA VISTA 

resulting in the deletion of die offset provision as it relates to NO,. We 

decline to speculate on diis.

 4' 

More important is whether the condition is consistent with die 

assumptions made in the underlying air quality modeling. The 

modeling assumed diat Hadson Power would be operating at a 0.25 

lbsAO6 Btu limit and diat die boilers at Georgia Bonded Fibers would 

be shut down. The permit provision objeaed to by SELC and die 

County allows continued operation of the existing boilers if this "does 

not increase the net impaa of air quality," demonstrated "in a manner 

acceptable to [VDAPC]." We assume die "increase" is measured relative 

to die scenario as modeled, i.e. widi Hadson Power operating at its 

allowable emission limitation and widi die Georgia Bonded Fibers 

boilers shut down. We do not find diat allowing this additional flexibility, with die limitations as specified, in any way allows adverse impacts 

beyond those considered in the underlying model and we find no error 

in its formulation. 

IV. Air Quality Modeling 

Air quality models attempt to describe the course of pollutants 

as they leave the source by quantifying the qualities of air pollution 

transport "to provide numerical estimates of ground level concentrations based upon facility and meteorological parameters." J. Bromberg, 

Clean Air Act Handbook, at 86 (2d ed. 1985). PSD permit applicants 

use modeling to demonstrate compliance widi die requirements for 

obtaining a permit. For example, Hadson Power used modeling in this 

case to demonstrate that its proposed emissions would not cause or 

contribute significandy to a violation of the available increments, and 

die FLMs used Hadson Power's modeling results in their adverse impaa 

determinations. 

SELC and die County contend diat Hadson Power's modeling 

does not adequately consider local topography and meteorology. See 

SELC Petition at 33-35. SELC asserts that due to Hadson Power's 

49

 While SELC objects that Permit, Part I, Condition 38(d) "does not provide 

incentive for emissions from Hadson Power and Georgia Bonded to be minimized," SELC 

Petition at 33, it does not cite any legal requirement for the combined emissions to be 

minimized. 
P.43 

HADSON POWER 14 - BUENA VISTA 41 

proposed location in a valley of the Blue Ridge Mountains, die site is 

subjea to frequent temperature inversions and air stagnation, and that 

these conditions were not considered in the modeling. *° 

The County similarly argues that die meteorological and air 

quality data colleaed by Hadson Power are incomplete, unreliable, 

inaccurate and unsuitable.

 51

 The County argues that these faulty data 

render die modeling results suspea. 

Both SELC's and die County's petitions fail to articulate 

adequately a substantive basis for review. The County's petition for 

review consists of a letter stating that: 

The County takes exception to several conditions of 

die final permit and herein reiterates its opposition to 

tbe issuance of tbe permit as it set forth in its 

"COMMENTS OF THE COUNTY OF ROCKBRIDGE, 

VIRGINIA IN OPPOSITION TO THE ISSUANCE OF THE 

AIR PERMIT," which comments are attached hereto and 

incorporated herein by reference. 

County Petition at 1 (emphasis added). In odier words, the grounds 

for review asserted in the County's petition are identical to die County's 

comments on Hadson Power's draft permit.

 52

 SELC's petition to 

review the air quality data also repeats comments made by it and odiers 

Specifically, SELC protests the use of air stability data collected in Greensboro, 

N.C, a non-valley location. SELC is also dissatisfied diat the air quality data used in die 

modelling were colleaed from September to April, and do not include the summer when 

air stagnation frequently occurs. SELC contends that these limited dau conflia with 

VDAPC regulations requiring a full year's worth of dau unless it is determined diat a 

complete and adequate analysis can be performed using dau from a shorter period. 

Virginia Air Pollution Control Regulations 

§120-08-02(N)(l)(d). 

31

 For example, the County also contests the use of meteorological dau colleaed 

in Greensboro, N.C. 

32

 The County raises one additional issue in its letter that it did not raise in its 

comments on the draft permit, namely that VDAPC failed to consider seriously the adverse 

impaa determinations, an argument addressed supra. 
P.44 

42 HADSON POWER 14 - BUENA VISTA 

on the draft permit.

 53

 Neidier petitioner makes an argument which 

addresses the adequacy of VDAPC's response to those comments.

 u 

In diis case, VDAPC provided significant, substantial responses to the 

comments on these issues. VDAPC Memo, at 5-49 to 5-69. Because the 

County and SELC failed to meet die requirement of §124.19 to address 

these responses, we deny review of die various substantive issues raised 

relative to the air quality analyses. See Adcom Wire, supra. 

SELC raises another issue, concerning the public notice of the 

models diat were used in this case. The Clean Air Aa requires the 

Agency to specify the air quality models to be used for PSD permits. 

CAA §l65(e)(3)(d). These models are listed in the "Guideline on Air 

Quality Models (Revised)" (1986) and Supplement A (1987) (hereinafter 

collectively "Guidelines"). See 40 C.F.R. §52.21(/). If the recommended 

models are inappropriate in a given case, other non-Guideline models 

may be used pursuant to 40 C.F.R. §52.21(0- That section provides diat 

"[w]ritten approval of the Administrator must be obtained for any" nonGuideline model. "In addition, use of a modified or substituted model 

must be subjea to notice and opportunity for public comment * * *." 

Id. The Virginia permitting regulation contains an identical 

requirement. See Virginia Air Pollution Control Regulations §120-08-

02(M)(2). 

In this case, the models contained in the Guidelines were 

apparently not appropriate given Hadson Power's proposed location, 

and so Hadson Power sought and obtained VDAPC and EPA approval 

33

 SELC's petition refers to, and includes as attachments, the comments made on 

the draft permit by Dr. Michael Williams, Edgar W. Spencer, Edwin J. Goller and die 

County. SELC Petition at 34. 

The only exception to this is SELC's reference to VDAPC's response that it 

collected dau for a period less than one year because historical dau gadiered elsewhere 

showed diat a complete and adequate analysis could be made widi less dau. SELC 

Petition, at 35. SELC asserts that "(gjiven Buena VLSU'S unique meteorological conditions, 

it is clear error to rely on historical air quality dau gadiered in other areas as a basis for 

conditions in the Buena Visu valley." Id. SELC's mere allegation of clear error is far from 

satisfying its burden under § 124.19 of providing a "statement of reasons" showing that the 

permit is based on clear error. See In re Waste-Tecb Services and BP Chemicals America, 

Inc, RCRA Appeal No. 88-8, unpub. op. at n.2 (Adm'r, Sept. 22, 1988) ("petition for 

review must not only identify disputed issues, but demonstrate that special and important 

reasons necessiute review"). 
P.45 

HADSON POWER 14 - BUENA VISTA 43 

to use a non-Guideline model.

 5S

 VDAPC failed, however, to submit 

this non-Guideline model to notice and comment prior to its use. 

SELC contends diat state and federal regulations require public 

notice and comment before a non-Guideline model may be used, and 

diat such notice cannot be provided in connection with die draft 

permit, which is "issued long after the decision to use die model is 

made and [dierefore] does not give die public an opportunity to affect 

the choice of models." SELC Petition at 36. In any event, SELC notes, 

the notice of die draft permit and public hearing in this case did not 

indicate Hadson Power's use of a non-Guideline model. 

SELC is correa that there is a regulatory obligation to submit 

a non-Guideline model to notice and public comment. However, die 

federal regulation, §52.21(/), provides diat such notice and opportunity 

for comment shall proceed in accordance widi die procedures 

developed for public participation in the process of issuing a permit. * 

35

 As described by VDAPC: 

Because the applicant's proposed location is in complex terrain and 

widiin 100 kilometers of two Class I areas, some unique problems 

were encountered during the modeling analysis of air quality impacts. 

In order to determine die maximum impaa on receptors located at 

elevations between the suck top and die plume height (intermediate 

terrain), it was necessary for Hadson-14 to develop a model diat 

would compare results from the simple terrain and complex terrain 

models in this region where the models overlap. The worst case 

from either model would be selected and incorporated into die 

overall model output. Because no such model has been approved by 

EPA for general use, Hadson-14 created a hybrid model, ISCSTCPX, 

based on two established EPA models (ISCST and COMLPEX 1); EPA 

approved ISCSTCPX in May 1991. 

VDAPC Memo, at 5-3. 

This regulation provides diat use of a non-Guideline model "must be subjea to 

notice and opportunity for public comment under procedures developed in accordance 

widi paragraph (q) of this section." Paragraph (q) requires the application of 40 C.F.R. 

Part 124, which "contains EPA procedures for issuing, modifying, revoking and reissuing 

or terminating all • • • PSD permits • • •." 40 C.F.R. §124.1. 
P.46 

i 'i » 

44 HADSON POWER 14 - BUENA VISTA 

The same is true of the Virginia regulation.

 37

 We interpret this 

regulatory language as allowing the notice and opportunity for public 

comment on the use ofa non-Guideline model to be provided widi die 

notice and opportunity for public comment on the draft permit. SELC 

agrees that there is no explicit regulatory language requiring notice and 

comment on the non-Guideline model prior to that stage of the 

proceedings, instead arguing diat die regulations implicidy require 

notice and comment on a non-Guideline model prior to its use, which 

would be prior to the draft permit.

 w SELC Petition at 36 n.19. In 

light of the clear reference in §52.21(/) to the permitting procedures in 

Part 124, however, we decline to go beyond diis language and search 

for an alleged implicit requirement. 

SELC further contends diat VDAPC's notice of Hadson Power's 

draft permit failed to mention die use of die non-Guideline model. 

VDAPC disagrees, noting that "all appropriate information including 

* * * die air quality analyses * * * could be reviewed by die public at 

local libraries in Buena Vista and Lexington" and at die local VDAPC 

office in Roanoke. Response to SELC Petition at 13. In addition, 

VDAPC notes that the notice of die draft permit indicated diat an 

informal briefing would take place on January 15, 1992. At this 

briefing, VDAPC staff discussed the model used by Hadson Power in the 

air quality analysis. Id. 

We are not persuaded by VDAPC's response, which is strikingly 

similar to its explanation for failing to include in the notice the 

prediaed amount of increment consumption in the Park. For the same 

reasons discussed above with reference to increment consumption, 

VDAPC's failure to mention the non-Guideline model in die public 

notice of die draft permit and public hearing deprived the public of a 

57

 VirginiaAir Pollution Control Regulations §120-08-02(M)(2) provides diat notice 

and comment on die use of non-Guideline models should proceed in accordance widi 

subseaion (R), which in turn provides for public notice of, among other things, VDAPC's 

preliminary determination on die permit application. 

38

 According to SELC, this implicit requirement stems from- the faa that to be 

included in the Guidelines, a model must be subjea to notice and comment. SELC 

Petition at 36 n.19 (citing 42 U.S.C. §7475(e)(3); 43 Fed. Reg. 26,399 Quae 19, 1978)). 

SELC's argument overlooks that Hadson Power's model is not to be included in the 

Guidelines for future application widiout further public notice, but was used in this case 

only. 
P.47 

* > • > 

HADSON POWER 14 - BUENA VISTA 45 

meaningful opportunity to comment on the draft permit. VDAPC is 

required, in connection with any public notice necessitated by its 

response to the remand ordered by this decision, to give notice of the 

non-Guideline model used by Hadson Power. Comments on the model 

may persuade the state that some changes to die model are appropriate. Further, any comments could support a renewed challenge to die 

modeling assumptions in any further appeal after completion of the 

remand if properly made in light oiAdcom Wire, supra. 

V. National Park Service Environmental Assessment 

Hadson Power proposed diat its facility be serviced by a coal 

conveyor and utility improvements running between it and Georgia 

Bonded Fibers. The coal conveyor and utility improvements (steam, 

condensate and water lines) would run through Glen Maury Park, a 

park owned by the City of Buena Vista and supported by federal funds 

under the Land and Water Conservation Fund Act, 16 U.S.C. §460/-

8(0(3). Accordingly, die Department of the Interior (DOI) must 

approve the use of Glen Maury Park for this purpose. 

The City of Buena Vista requested such approval. The DOI, 

through the National Park Service (NPS), notified die public diat it 

would prepare an environmental assessment of the proposed coal 

conveyor and utility improvements in order to determine whether to 

prepare an environmental impaa statement under die National 

Environmental Policy Aa (NEPA), 42 U.S.C. §4332. See 57 Fed. Reg. 

2,928 (Jan. 24, 1992). While this appeal was pending, and before the 

NPS completed its environmental review, Hadson Power notified die 

City of Buena Vista that it is abandoning its plans to use the coal 

conveyor, and will Instead rely upon truck delivery of coal. Hadson 

Power informed die City of Buena Vista that it is contemplating 

rerouting the utility improvements to avoid Glen Maury Park. 

In response to CLEAR's comment that VDAPC should defer 

consideration of die permit application until NPS completes its 

environmental review pursuant to NEPA, VDAPC stated diat die 

outcome of die NEPA process would have no affea on the PSD permit 

decision because "Hadson Power included fuel delivery by truck in its 

analyses as a contingent if the conveyor system could not be utilized. 
P.48 

46 HADSON POWER 14 - BUENA VISTA 

The VDAPC has evaluated bodi alternatives and found diem to be in 

accordance widi PSD requirements." VDAPC Memo, at 5-41. 

On appeal, CLEAR asserts that VDAPC's response is inadequate 

because it fails to explain why "it would not have been 'feasible' or 

'reasonable' to await the completion of a [NEPA] review that will 

certainly provide a wealdi of information relating to the environmental 

impacts of the Buena Vista plant" as required by 40 C.F.R. §52.21(s) and 

Virginia Air Pollution Control Regulations §120-08-02(1"). CLEAR 

Petition at 4. CLEAR contends diat by "refusing to defer consideration 

of die permit and diereby allowing the projea to go forward, VDAPC 

undermined die efficacy of die NEPA review." Id. CLEAR also asserts 

in contradiction to VDAPC that die air quality analysis submitted by 

Hadson Power assumed coal delivery by conveyor, and did not include 

die possibility of delivery by truck, and dierefore the permit is based on 

air quality data diat do not reflea the true situation. CLEAR Reply at 

2-3-

 59 

NEPA §102(2)(C) requires that an environmental impaa 

statement shall be included "in every recommendation or report on 

* * * major federal actions significandy affecting die quality of the 

human environment." 42 U.S.C. §4332(2)(C). Federal approval of 

private actions is a federal action which may trigger the need for an 

environmental impaa statement under NEPA. 40 C.F.R. §1508.18(a). 

The NPS is currendy proceeding widi its obligations under these 

provisions in connection with die proposed use of die Glen Maury 

Park. 

The federal PSD regulations provide diat 

Whenever any proposed source or modification is 

subjea to aaion by a Federal Agency which might 

necessitate preparation of an environmental impaa 

statement pursuant to the National Environmental 

59

 The County also contends diat VDAPC should not issue the permit until the 

pending NEPA process is complete. The County merely repeats the comments it made 

on die draft permit without explaining how or why VDAPC's responses to the comments 

are inadequate, and diereby foils to comply with the requirements of 40 C.F.R. §124.19. 

See Adcom Wire, supra. Accordingly, we deny review of die County's claims. 
P.49 

HADSON POWER 14 - BUENA VISTA 47 

Policy Aa * * *, review by the Administrator conduaed 

pursuant to this seaion shall be coordinated widi die 

broad environmental reviews under that Aa • * * to 

the maximum extent feasible and reasonable. 

40 C.F.R. §52.21(s). The Virginia regulation is virtually identical. See 

Virginia Air Pollution Control Regulations §120-02-08(T). 

Under the plain language of this regulation, coordination is all 

that is required of the PSD permitting authority, and only to die extent 

feasible and reasonable. As used in this regulation, "coordinate" is best 

given its everyday meaning, namely to harmonize or to a a together in 

a concerted way. In our view, dien, diis regulation does not require a 

state to refrain from issuing a PSD permit until die NEPA review process 

is complete. Accordingly, we rejea CLEAR's argument that VDAPC 

clearly erred by failing to defer consideration of diis PSD permit until 

NPS completes its review of the proposed easement for Glen Maury 

Park. *° We also disagree with CLEAR's argument that deferring die 

permit is necessary because the NEPA review would provide a wealdi 

of information relating to the impaa of the proposed facility. To the 

extent information would be relevant to the PSD permit, such 

information should have already been supplied in the PSD permit 

process. If VDAPC believed any relevant information was lacking, it is 

authorized to request such information under Virginia Air Pollution 

Control Regulations § 120-08-02 (R).

 6l There is nothing in the record 

to suggest, and CLEAR does not demonstrate, that VDAPC lacked 

information relevant to the PSD permit proceeding diat would be 

provided in the NEPA process. 

Moreover, we conclude diat VDAPC sufficiendy explained why 

coordination widi die NPS should not be required in this case. The 

There may be times where the federal aaion triggering NEPA requirements 

involves the proposed source itself. In those circumstances, which are not present here, 

waiting for completion of the NEPA process may be appropriate. 

That regulation provides, in part, diat VDAPC "shall advise die applicant of any 

deficiency in the application or in the information submitted." See also 40 C.F.R. 

5124.3(c) ("the Regional Administrator may request additional information from an 

applicant but only when necessary to clarify, modify, or supplement previously submitted 

material"). 
48 HADSON POWER 14 - BUENA VISTA 

only portion of the NEPA review relevant to this permit proceeding is 

that pertaining to the coal conveyance.

 62 Hadson Power's recent 

decision to abandon die plans for coal conveyance across Glen Maury 

Park eliminates any need to await completion of the NPS NEPA review. 

Even if the coal conveyance option were still pending, VDAPC indicates 

diat its permit decision is based on an air quality analysis that included 

die truck delivery option, and dierefore the outcome of die NEPA 

review is Irrelevant. The record supports this conclusion.

 6i Because 

the outcome of the NEPA review would not provide any significant new 

information to the proceeding, or change the outcome, we agree with 

VDAPC that coordination of die PSD permit process and the NEPA 

review process is not reasonably required in this case. 

CONCLUSION 

For the reasons set forth above, the Board remands diis permit 

to the State: 

1. to describe emissions related to die 

construction of Hadson Power and to 

include such emissions in the air 

quality analysis or demonstrate why 

they can be properly excluded; 

2. to determine whedier the Wilderness 

FLM demonstrated diat Hadson Power's proposed emissions will adversely 

impaa AQRVs in the Wilderness; and 

3. to determine whedier the Park FLM 

demonstrated that Hadson Power's 

There is nothing in the record diat indicates how or why the utility 

improvements relate to the PSD permit. 

6i See VDAPC Memo, at 5-36 (The information submitted by Hadson Power 

suggests that the plant requires * • • either one train locomotive or up to 40 coal trucks 

each day") and 5-38 (The Hadson Power air quality analysis did include potential fugitive 

dust from coal handling operations (rail and truck transfer options, storage, and 

crushing)."). 
P.51 

HADSON POWER 14 - BUENA VISTA 49 

proposed emissions will adversely 

impaa AQRVs in the Park. 

VDAPC is hereby direaed to reopen die permit proceedings for the 

limited purpose of reconsidering diese issues in a manner consistent 

with this opinion. After reconsidering these issues, VDAPC shall reissue 

a draft permit and reopen die public comment period to allow 

comments on its reconsideration. The notice of die public comment 

period shall be in accordance widi all applicable federal and state 

regulations, and shall provide for public comment, in accordance widi 

this opinion, on all increment to be consumed by die proposed source 

(including any increment to be consumed at the Park), and Hadson 

Power's use of a non-Guideline model in its air quality analyses. The 

State's final permit decision is subjea to review under 40 C.F.R. 

§124.19, and appeal of die remand proceedings is required to exhaust 

administrative remedies under 40 C.F.R. §124.19(0 (Hi)-

Review of all odier issues raised in the petitions for review is 

denied. 

So ordered. 
P.52 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Remand Order in the matter of Hadson 

Power 14 - Buena Vista, PSD Appeal Nos. 92-3, 92-4, 92-5 were sent to the following 

persons in the manner indicated: 

First Class Mail 

Postage Prepaid: 

Wallace N. Davis 

Commonwealth of Virginia 

Department of Air Pollution Control 

200-202 North Ninth St. 

P.O. Box 10089 

Richmond, VA 23240 

David W. Carr, Jr. 

Southern Environmental Law Center 

201 W. Main St. 

Suite 14 

Charlottesville, VA 22901-4090 

Leanne M. Shank 

Natkin & Heslep, P.C. 

13 S. Main St. 

P.O. Box 4205 

Lexington, VA 24450 

David A. Wirth 

Assistant Professor of Law 

Washington & Lee University 

School of Law 

Legal Practice Clinic 

Lexington, VA 24450 

Hand Delivery: Bessie Hammiel 

Hearing Clerk 

U.S. EPA Headquarters 

Room 3708 

Q^yLiAM eJ-U )i^Us^ 

Brenda H. Selden 

Legal Staff Specialist 

Dated: OCT 5 1992 
P.53 

r 

• • 'Kip*'* li!

V W,miW»,.w,.w

.

1« j - r ' «r