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BEFORE THE ADMINISTRATOR
 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

) 

IN THE MATTER OF: ) 

) ORDER RESPONDING TO 

HU HONUA BIOENERGY FACILITY ) PETITIONER’S REQUEST THAT 

PEPEEKEO, HAWAII ) THE ADMINISTRATOR 

) OBJECT TO ISSUANCE OF 

PERMIT NO. 0724-01-C ) STATE OPERATING PERMIT 

) 

ISSUED BY THE CLEAN AIR BRANCH ) 

FOR THE HAWAII DEPARTMENT OF HEALTH ) PETITION NO. IX-2011-1 

) 

____________________________________) 

ORDER GRANTING IN PART AND DENYING IN PART 

PETITION FOR OBJECTION TO PERMIT 

I. INTRODUCTION 

The United States Environmental Protection Agency (EPA) received a Petition (the Petition) 

dated August 26, 2011, from Preserve Pepe’ekeo Health & Environment (the Petitioner) pursuant 

to section 505(b)(2) of the Clean Air Act (CAA or Act), 42 U.S.C. § 7661d(b)(2), and 40 C.F.R. 

§ 70.8(d), titled “Petition Requesting That the Administrator Object to Issuance of the Proposed 

Title V Operating Permit for Hu Honua Bioenergy, LLC” (Petition). The Petition requests that 

the EPA object to the title V operating permit proposed by the Clean Air Branch (CAB), 

Environmental Management Division, Hawaii Department of Health (HDOH), for the Hu Honua 

Bioenergy Facility (Hu Honua) in Pepeekeo, Hawaii (Proposed Permit).1 On August 31, 2011, 

HDOH issued a final permit for Hu Honua, identified as Covered Source Permit (CSP) Number 

0724-01-C, pursuant to Hawaii Administrative Rules (H.A.R.), Title 11, Chapter 60.1, Air 

Pollution Control (Final Permit). 2 Hu Honua is a proposed biomass electricity generating 

facility. 

1 In its Petition, the Petitioner references a “Revised Draft Permit,” a “Draft Permit,” and a “proposed title V 

permit.” See e.g., Petition at 1, 3, 5. In referencing permits other than the Proposed Permit, the EPA’s understanding 

is that the Petition is addressing a version of the permit other than the final permit since the final permit was issued 

after the Petitioner submitted its Petition. In this Order, we will refer to the Proposed Permit when generally 

discussing the Petitioner’s request that the EPA object to Hu Honua’s title V permit, and we will note the specific 

version of the permit that we are referencing as needed.

2 Hawaii uses the term “covered source” to refer to all title V (part 70) major sources, all sources subject to a 

requirement under the Prevention of Significant Deterioration (PSD) program, and sources subject to a standard 

under section 111 or section 112 of the CAA. See e.g., H.A.R. § 60.1-1 (definition of “covered source”). 

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The Petitioner requests that the Administrator object to the Proposed Permit because the 

Petitioner alleges that the Proposed Permit does not comply with the CAA and implementing 

regulations at 40 C.F.R. Part 70. The Petitioner raises thirteen Claims in its Petition as bases for 

the Administrator to object to the Proposed Permit. Each Claim is explained further in Section IV 

of this Order. 

This Order contains the EPA's response to the Petition. Based on a review of the Petition, other 

relevant materials, including the Final Permit, permit record, and relevant statutory and 

regulatory authorities, and as explained below, I grant in part and deny in part the Petition 

requesting that the EPA object to the Hu Honua title V Proposed Permit. 

II. STATUTORY AND REGULATORY FRAMEWORK 

Section 502(d)(l) of the CAA, 42 U.S.C. § 766la(d)(l), requires each state to develop and submit 

to the EPA an operating permit program to meet the requirements of title V of the CAA. The 

state of Hawaii originally submitted its title V program governing the issuance of operating 

permits on December 20, 1993. See 59 Fed. Reg. 37957 (July 26, 1994). The EPA granted 

interim approval of Hawaii’s title V program on December 1, 1994, and granted full approval on 

November 30, 2001. 59 Fed Reg. 61549; 66 Fed. Reg. 62945; 40 C.F.R. Part 70, Appendix A. 

The program is now codified in H.A.R., Title 11, Chapter 60. 

All major stationary sources of air pollution and certain other sources are required to apply for 

title V operating permits that include emission limitations and other conditions as necessary to 

assure compliance with applicable requirements of the CAA, including the requirements of the 

applicable State Implementation Plan (SIP). CAA §§ 502(a) and 504(a), 42 U.S.C. §§ 7661a(a) 

and 7661c(a). The title V operating permit program does not generally impose new substantive 

air quality control requirements (referred to as “applicable requirements”), but does require 

permits to contain monitoring, recordkeeping, reporting and other requirements to assure sources' 

compliance with applicable requirements. 57 Fed Reg. 32250, 32251 (July 21, 1992). One 

purpose of the title V program is to “enable the source, States, EPA, and the public to understand 

better the requirements to which the source is subject, and whether the source is meeting those 

requirements.” Id. Thus, the title V operating permit program is a vehicle for ensuring that air 

quality control requirements are appropriately applied to facility emission units and for assuring 

compliance with such requirements. 

Applicable requirements for a new major stationary source or for a major modification to a major 

stationary source include the requirement to obtain a preconstruction permit that complies with 

applicable new source review (NSR) requirements. For major sources, the NSR program is 

comprised of two core types of preconstruction permit programs. Part C of the CAA establishes 

the Prevention of Significant Deterioration (PSD) program, which applies to areas of the country, 

such as Pepeekeo, Hawaii, that are designated as attainment or unclassifiable for the national 

ambient air quality-standards (NAAQS). CAA §§ 160-169, 42 U.S.C. §§ 7470-7479. Part D of 

the Act establishes the nonattainment NSR program, which applies to areas that are designated as 

nonattainment with the NAAQS. At issue in this Order is the PSD part of the NSR program, 

which requires a major stationary source in an attainment area to obtain a PSD permit before 

beginning construction of a new facility or undertaking certain modifications. CAA § 165(a)(1), 

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42 U.S.C. § 7475(a)(1). The analysis under the PSD program must address two primary and 

fundamental elements (among other requirements) before the permitting authority may issue a 

permit: (1) an evaluation of the impact of the proposed new or modified major stationary source 

on ambient air quality in the area, and (2) an analysis ensuring that the proposed facility is 

subject to Best Available Control Technology (BACT) for each pollutant subject to regulation 

under the Act. CAA §§ 165(a)(3), (4), 42 U.S.C. §§ 7475(a)(3), (4); 40 C.F.R. § 52.21(j), (k). 

The EPA has two largely identical sets of regulations implementing the PSD program: one set, 

found at 40 C.F.R. § 51.166, contains the requirements that state PSD programs must meet to be 

approved as part of a SIP. The other set of regulations, found at 40 C.F.R. § 52.21, contains the 

EPA’s federal PSD program, which applies in areas without a SIP-approved PSD program. 

Because Hawaii’s SIP lacks an approved PSD program, the applicable requirements governing 

the issuance of PSD permits in Hawaii are the federal PSD regulations at 40 C.F.R. § 52.21. See 

40 C.F.R. § 52.632. Accordingly, the applicable requirements of the Act for new major sources 

or major modifications in Hawaii include the requirement to comply with PSD requirements 

under 40 C.F.R. § 52.21. See, e.g., 40 C.F.R. § 70.2.3 Although the EPA Region 9 delegated 

administration of the PSD program to Hawaii, 48 Fed. Reg. 51682 (Nov. 10, 1983); 54 Fed. Reg. 

23978 (June 5, 1989), PSD permits issued by HDOH are federal permits.4 

State and local permitting authorities issue title V permits pursuant to the EPA-approved title V 

programs. Under CAA section 505(a), 42 U.S.C. § 7661d(a), and the relevant implementing 

regulations at 40 C.F.R. § 70.8(a), states are required to submit each proposed title V operating 

permit to the EPA for review. Upon receipt of a proposed permit, the EPA has 45 days to object 

to final issuance of the proposed permit if the EPA determines that the proposed permit is not in 

compliance with applicable requirements or the requirements of the Act. 42 U.S.C. § 

7661d(b)(1); see also 40 C.F.R. § 70.8(c) (providing that the EPA will object if the EPA 

determines that a proposed permit is not in compliance with applicable requirements or 

requirements under 40 C.F.R. Part 70). 

If the EPA does not object to a permit on its own initiative, section 505(b)(2) of the Act and 40 

C.F.R. § 70.8(d) provide that any person may petition the Administrator, within 60 days of the 

expiration of the EPA's 45-day review period, to object to the permit. The petition shall be based 

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

comment period provided by the permitting agency (unless the petitioner demonstrates in the 

petition to the Administrator that it was impracticable to raise such objections within such period 

or unless the grounds for such objection arose after such period). 42 U.S.C. § 7661d(b)(2); 40 

C.F.R. § 70.8(d). Section 505(b)(2) indicates the Administrator “shall grant or deny such petition 

3

Under 40 C.F.R. § 70.1(b), “[a]ll sources subject to [the title V regulations] shall have a permit to operate that 

assures compliance by the source with all applicable requirements.” “Applicable requirements” are defined in 40 

C.F.R. § 70.2 to include “(1) [a]ny standard or other requirement provided for in the applicable implementation plan 

approved or promulgated by EPA through rulemaking under title I of the [Clean Air] Act that implements the 

relevant requirements of the Act, including any revisions to that plan promulgated in [40 C.F.R.] part 52; (2) [a]ny 

term or condition of any preconstruction permits issued pursuant to regulations approved or promulgated through 

rulemaking under title I, including parts C or D, of the Act.”

4

Appeals of those permits are accordingly governed by 40 C.F.R. § 124.19 and are heard exclusively by the 

Environmental Appeals Board. Furthermore, where a federal PSD permit is appealed to the Board, the permit is not 

effective and construction may not begin until the Board has disposed of the appeal. 40 C.F.R. § 124.15. 

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within 60 days after the petition is filed.” This provision does not direct how the Administrator 

must address the individual issues in each petition, thus providing the EPA with discretion in 

determining the best approach for addressing individual issues in each petition. The EPA may 

consider the complexity of the issues, the inter-relatedness of the issues, agency resources, public 

participation opportunities, source-specific considerations and other relevant factors in deciding 

the most appropriate approach for addressing the issues in each petition. See also In the 

Consolidated Environmental Management, Inc. – Nucor Steel Louisiana, Petition Nos. VI-2010­

02 and VI-2011-03 at 11 (March 23, 2012) (Nucor I Order) (“Section 505(b)(2) does not specify 

whether the EPA must respond initially to all of the issues raised in a petition....the Act does not 

explicitly require that, nor does it foreclose the EPA from granting a petition based on one or 

more threshold issues where those issues potentially affect the analysis or disposition of other 

issues in the petition.”). 

In response to such a petition, the Act requires the Administrator to issue an objection if a 

petitioner demonstrates that a permit is not in compliance with the requirements of the Act. 42 

U.S.C. § 7661d(b)(2); 40 C.F.R. § 70.8(c)(1); see also New York Public Interest Research 

Group, Inc. (NYPIRG) v. Whitman, 321 F.3d 316, 333 n.11 (2d Cir. 2003). Under section 

505(b)(2) of the Act, the burden is on the petitioner to make the required demonstration to the 

EPA. MacClarence v. EPA, 596 F.3d 1123, 1130-33 (9th Cir. 2010); Sierra Club v. Johnson, 541 

F.3d 1257, 1266-1267 (11th Cir. 2008); Citizens Against Ruining the Environment v. EPA, 535 

F.3d 670, 677-78 (7th Cir. 2008); Sierra Club v. EPA, 557 F.3d 401, 406 (6th Cir. 2009) 

(discussing the burden of proof in title V petitions); Whitman, 321 F.3d at 333 n.11; In the 

Consolidated Environmental Management, Inc. – Nucor Steel Louisiana, Petition Nos. VI-2011­

06 and VI 2012-07 at 4-8 (June 19, 2013) (Nucor II Order) (explaining the petitioner’s 

demonstration burden). In evaluating a petitioner’s claims, the EPA considers, as appropriate, the 

adequacy of the permitting authority’s rationale in the permitting record, including the response 

to comments. If, in responding to a petition, the EPA objects to a permit that has already been 

issued, the EPA or the permitting authority will modify, terminate, or revoke and reissue the 

permit consistent with the procedures set forth in 40 C.F.R. §§ 70.7(g)(4) and (5)(i) - (ii), and 40 

C.F.R. § 70.8(d). 

III. BACKGROUND 

A. Facility 

A more detailed description of Hu Honua is included in HDOH’s Initial Covered Source Permit 

Review Summary, dated August 2011 (Final Permit Review Summary). 

5 In summary, Hu Honua 

is located in Pepeekeo, Hawaii, on a 2,557-acre site on the Big Island of Hawaii. “The Hu Honua 

Bioenergy facility will generate electricity for Hawaii Electric Light Company, Inc. (HELCO) 

and consists of a 407 MMBtu/hour boiler6

, a steam turbine generator, and an 836 kilowatt (kW) 

emergency generator.” Id. at 2. Hu Honua will have a net power output of 21.5 megawatts (MW) 

5 Part 70 requires permitting authorities to prepare a “statement of basis” for each title V permit. 40 C.F.R. §
 

70.7(a)(5). A “permit review summary” prepared and issued by HDOH in conjunction with a covered source permit
 

is the functional equivalent of a statement of basis.

6 “MMBtu” means one million British thermal units.
 

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to the grid. Id. at 1. “Hu Honua is proposing to burn biomass in the form of wood in the boiler 

and burn 100% biodiesel during startups and as a supplemental fuel during low-load operation of 

the boiler. An 836 kW electrical generator will be operated only during emergencies and will 

only combust 100% biodiesel.” Id. at 1. 

B. Permit History 

On August 28, 2009, Hu Honua submitted an application for a new covered source permit 

(Permit Application)7 to HDOH to re-start operations at the facility, which had previously ceased 

operation on December 31, 2004. Final Permit Review Summary at 2. On August 13, 2010, 

HDOH released a Draft Permit for public comment. On December 27, 2010, Hu Honua 

submitted a revised application (Revised Permit Application) to HDOH.8 On February 17, 2011, 

HDOH released a Revised Draft Permit for a second round of public comment. After the end of 

the second public comment period on March 21, 2011, HDOH made significant changes to the 

Revised Draft Permit before submitting the Proposed Permit to the EPA on May 19, 2011. The 

EPA’s 45-day review period on the Proposed Permit ended on July 5, 2011. During its 45-day 

review period, the EPA did not object to the Proposed Permit, but did send a letter to HDOH 

dated June 30, 2011, with several comments on the Proposed Permit (EPA Letter).9 The 

Petitioner timely filed its Petition on August 26, 2011, within the 60-day window following the 

EPA’s 45-day review period, which ended on September 6, 2011. See CAA § 505(b)(2), 42 

U.S.C. § 7661d(b)(2). On August 31, 2011, HDOH issued the Final Permit and the Final Permit 

Review Summary, which included Addendum A (HDOH’s summary of and its responses to 

public comments received during the second public comment period, or “2011 RTC”) and 

Addendum B (HDOH’s response to the EPA Letter, or “HDOH Response to EPA Letter”). It is 

the EPA’s understanding that on September 1, 2011, HDOH announced on its website and Hu 

Honua announced on its website that the Final Permit had been issued. 

C. Timeliness of Petition 

Pursuant to the CAA, if the EPA does not object during its 45-day review period, any person 

may petition the Administrator within 60 days after the expiration of the 45-day review period to 

take such action. CAA § 505(b)(2); 42 U.S.C. § 766ld(b)(2). Thus, any petition seeking the 

EPA’s objection to the Proposed Permit was due on or before September 6, 2011. The Petition, 

dated August 26, 2011, was received by the EPA on August 30, 2011. Thus, the EPA finds the 

Petitioner timely filed its Petition. 

7 HDOH refers to its title V program as the “covered source” program. That term is defined in HDOH’s regulations 

(HAR §11-60.1-1) and delineates the universe of stationary sources subject to title V permitting in Hawaii. The 

program is an integrated permitting program in which a source’s title V and preconstruction requirements are 

addressed in a single permitting process. HDOH implements provisions of both its own regulations and federal PSD 

regulations (40 C.F.R. § 52.21) in issuing permits to its covered sources. See Hawaii Department of Health – Clean 

Air Act Title V Operating Permit Program Evaluation, Final Report, conducted by the U.S. Environmental 

Protection Agency, Region 9 (September 28, 2010).

8 HDOH’s permit record references several other submittals of additional information between August 2009 and 

February 2011. See, e.g., Final Permit Review Summary. 

9 We discuss specific elements of the EPA Letter as appropriate in the EPA Responses in Section IV of this 

document. 

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IV. EPA DETERMINATIONS ON CLAIMS RAISED BY THE PETITIONER 

A. CLAIM 1: The Administrator Must Object Based on Issues Raised by the EPA 

Itself 

Petitioner’s Claim. The Petitioner claims that the CAA “precludes EPA from deferring to state 

authority regarding the adequacy of a Title V permit.” Petition at 5, citing CAA § 505(b)(2), 10 

and Whitman, 321 F.3d at 333. The Petitioner points to the EPA Letter as evidence of such 

“impermissible deferral” since the EPA Letter “falls short of ‘objecting’ to Hu Honua’s Draft 

Permit, rather deferring to [HDOH] to add final permit conditions...to ensure, on an on-going 

basis, that Hu Honua is not a major source of CO and HAPs....” Petition at 5. The Petitioner 

asserts that H.A.R. § 11-60-1-90(1) “specifically requires permits contain ‘emission limitations 

and standards, including operational requirements and limitations to assure compliance with all 

applicable requirements at time of permit issuance.” Id. (emphasis in original). The Petitioner 

asserts that the “Revised Draft Permit that the EPA and the public reviewed does not contain 

operational requirements and limitations to assure compliance with all applicable requirements, 

and [the EPA Letter] acknowledge[s] this fact in identifying additional conditions that [HDOH] 

must add to the final permit to ensure on an on-going basis that Hu Honua is not a major source 

of CO and HAPs.” Id. at 5-6 (emphasis in original). The Petitioner therefore concludes, 

“[w]here, as here, the draft permit is inadequate, EPA has a duty to object (CAA § 505(b)(2); 

Whitman, 321 F.3d at 333).” Id. at 6. 

EPA’s Response. For the reasons provided below, I deny the Petitioner’s request for an objection 

to the Proposed Permit on this claim. 

The EPA finds that the Petitioner’s claim is moot because, as explained later in this Order with 

respect to Claims 2, 4 and 8, the EPA is granting the Petitioner’s claims regarding ensuring 

compliance with applicable criteria pollutant and hazardous air pollutant (HAP) regulations. The 

Petitioner’s Claim 1 contends that the EPA should have objected to the Proposed Permit based 

on these specific issues (i.e., ensuring compliance with applicable PSD and MACT 

requirements). In this Order, the EPA is granting the Petitioner’s request that it object to issues 

regarding PSD and MACT requirements as raised in Claims 2, 4 and 8 of the Petition. Therefore, 

no further response on the issues raised in Claims 2, 4 and 8 is necessary. And, I find that Claim 

1 of the Petition is moot. 

I also deny the Petitioner’s request for an objection to the Proposed Permit on this claim on the 

alternative basis that the Petitioner may not raise this claim in a title V petition. This is not a 

claim that the title V permit is out of compliance with the requirements of the Act; rather, the 

Petitioner is making a separate claim that the EPA had a duty to object to the Proposed Permit as 

a result of the EPA Letter. That is not a proper claim to raise in a petition submitted under CAA 

§ 505(b)(2). Under § 505(b)(2), a petitioner must demonstrate that “the permit is not in 

compliance with the requirements” of the CAA before the EPA will object to the permit. See 42 

U.S.C. § 7661d(b)(2) (emphasis added). Under § 505(b)(2) of the Act, the burden is on the 

10 Petitioner cites to CAA § 505(b)(2) as support for its assertions in this claim. We note, however, that CAA § 

505(b)(2) contains the EPA’s authority to object to a permit in response to a petition filed with the Administrator, 

while § 505(b)(1) contains the EPA’s authority to object to a permit during the EPA’s 45-day review period. 

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petitioner to make the required demonstration to the EPA. MacClarence, 596 F.3d at 1130-33; 

Sierra Club v. Johnson, 541 F.3d at 1266-1267; Citizens Against Ruining the Environment, 535 

F.3d at 677-78; Sierra Club v. EPA, 557 F.3d at 406; Whitman, 321 F.3d at 333 n.11. Here, the 

Petitioner’s claim is not based on a substantive flaw with the Proposed Permit, or a procedural 

flaw with how the permitting authority processed the permit, as required by CAA § 505(b)(2). 

See also 40 C.F.R. § 70.8(c) and (d). Instead, it appears this claim is based on contentions 

regarding the EPA’s obligations to act under a separate provision of the CAA. The title V 

petition process is not the appropriate forum to challenge such actions or inactions. 

I also deny the Petitioner’s request for an objection to the Proposed Permit on this claim on the 

alternative basis that the Petitioner has not demonstrated that the EPA had an obligation to object 

to the Proposed Permit. Even if this is a proper claim to be raised in a title V petition, the 

Petitioner does not demonstrate how the EPA Letter qualifies as the requisite determination that 

would trigger the EPA’s obligation to object to the Proposed Permit. Section 505(b)(1) and 40 

C.F.R. § 70.8(c)(1) govern when the EPA must object to a permit as a result of its 45-day review. 

The Petitioner does not demonstrate how the EPA Letter constitutes the Administrator’s 

determination under these provisions. Instead, the Petitioner cites H.A.R. §11-60.1-90(1) as 

requiring the EPA to object to the Proposed Permit because the Petitioner seemingly views the 

EPA Letter as evidence that the Proposed Permit does not contain “all applicable requirements at 

the time of permit issuance.” Petition at 5-6. The Petitioner does not explain how this provision, 

which apparently governs the contents of HDOH’s final covered source permits, applies to an 

EPA decision-making process on the Proposed Permit. 

Moreover, we find that the Petitioner’s reliance on NYPIRG v. Whitman is inapposite because the 

court in that case considered a different statutory provision in a different context from this 

Petition, i.e., whether CAA § 505(b)(2) requires the EPA to object to a permit in response to a 

petition from the public. Whitman, 321 F.3d at 332-334. Here, the EPA was commenting on a 

Proposed Permit during its 45-day review period under CAA § 505(b)(1), and the Petitioner has 

not demonstrated why it was inappropriate for the EPA to issue a comment letter instead of 

objecting to the Proposed Permit. 

For the foregoing reasons, I deny the Petition as to this claim. 

B. CLAIM 2: The Permit Fails to Ensure Compliance with Criteria Air Pollutant 

Emission Limits 

Petitioner’s Claim. The Petitioner contends generally that the Proposed Permit “fails to ensure 

compliance with criteria air pollutant emission limits,” that the major source threshold of 250 

tons per year (tpy) would have been exceeded if the CO emissions estimate had been based on a 

more accurate CO emissions factor, and that sources over this threshold are subject to PSD 

requirements. Petition at 6. 

The Petitioner makes four sub-arguments related to this claim as to whether Hu Honua is a major 

source. See generally Petition at 6-10. First, the Petitioner contends that the “draft permit 

underestimates CO emissions.” Petition at 6 (listed as Claim 2A in the Petition). Citing the EPA 

Letter, the Petitioner asserts, among other things, that it has not been sufficiently established that 

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Hu Honua’s boiler will not be a major source of CO. Id.; see also EPA Letter at 3. The Petitioner 

contends that Hu Honua’s CO potential to emit (PTE) as calculated in the Revised Permit 

Application underestimates CO emissions because it used an emission factor for biodiesel fuel 

(which is used to start up the boiler) that is based on limited and low-quality data and on steadystate operations, thus underestimating boiler CO emissions during startup. Id. at 7, citing the 

Revised Permit Application at 11. In addition, the Petitioner claims that Hu Honua’s calculated 

CO emissions “omit [CO] emissions during shutdown or upset conditions.” Id. at 8. The 

Petitioner points out that the total annual estimated CO emissions are 246.4 tpy, which is just 3.6 

tpy below the 250 tpy major source threshold. Id. at 6, 8. The Petitioner further states that 

“[a]ctual emissions of CO are likely to exceed the PSD threshold when accounting for startup, 

shutdown, and upset conditions.” Id. at 8. 

Second, the Petitioner claims that “the permit lacks enforceable conditions limiting biodiesel 

usage.” Id. at 9 (listed as Claim 2C in the Petition). The Petitioner states that “[a]bsent adequate 

fuel usage limits and monitoring provisions, the Revised Draft Permit fails to ensure that [Hu 

Honua] is a synthetic minor source.” Id. 

Third, the Petitioner contends that Hu Honua does not qualify as a synthetic minor source 

because “the Revised Draft Permit lacks federally enforceable conditions to ensure compliance 

with emission limitations for CO and NOx.” Id. at 911 (listed as Claim 2D in the Petition.) The 

Petitioner claims that “after the fact testing” and “imposition of subsequent controls” is 

“inappropriate” because “the facility’s emissions will not be known, and permit limitations 

cannot be enforced until after initial startup and after a violation occurs.” Id. at 9-10. The 

Petitioner additionally asserts that “[s]ince the State has failed to properly quantify projected 

emissions and secure adequate initial and on-going emissions, and to impose practically and 

federally enforceable emission limitations, EPA cannot adequately enforce these limitations and 

thus must object to this permit.” Id. at 10. 

Fourth, the Petitioner claims that “the draft permit fails to include emissions limitations and 

monitoring for [sulfur dioxide (SO2)].” Id. at 8-9 (listed as Claim 2B in the Petition). Pointing to 

requirements that title V permits incorporate emission limits and standards and contain sufficient 

periodic monitoring, the Petition claims that “[t]he Draft Permit contains neither emission limits 

nor monitoring provisions” for SO2 emissions from biofuels combustion from the boiler. Id. at 

8.12 The Petitioner further explains that Hu Honua calculated annual SO2 emissions of 39.2 tpy 

11 Citing the EPA Letter and citing EPA guidance on potential to emit found in three memoranda “dated January 25, 

1995 and restated August 25, 1996 and July 10, 1988.” Petition at 9. While the Petition does not provide titles or 

authors for these memoranda, the intended references appear to include: “Options for Limiting the Potential to Emit 

(PTE) of a Stationary Source Under Section 112 and Title V of the Clean Air Act (Act),” John S. Seitz, Director, 

Office of Air Quality Planning and Standards (January 25, 1995); “Extension of January 25, 1995 Potential to Emit 

Transition Policy,” John S. Seitz, Director, Office of Air Quality Planning and Standards, and Robert I. Van 

Heuvelen, Director, Office of Regulatory Enforcement (August 27, 1996); “Second Extension of January 25, 1995 

Potential to Emit Transition Policy and Clarification of Interim Policy,” John S. Seitz, Director, Office of Air 

Quality Planning and Standards, and Eric V. Schaeffer, Director, Office of Regulatory Enforcement (July 10, 1998).

12 Citing H.A.R. §§ 11-60.1-90(1) and 11-60.1-90(7)(B), 40 C.F.R. §§ 70.6(a)(3) and 71.6(a)(3), and the EPA’s 

Periodic Monitoring Guidance (pp. 3-4). While the Petition does not provide titles or authors for this memorandum, 

the intended reference appears to be: Eric V. Schaeffer, Director, Office of Regulatory Enforcement, and John S. 

Seitz, Director, Office of Air Quality Planning and Standards, “Periodic Monitoring Guidance for Title V Operating 

Permits Programs” (September 15, 1998). 

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based on an emission rate of 0.028 lb/MMBtu and a maximum heat input of 2,800,000 

MMBtu/year, and claims that “the Draft Permit contains no provisions to monitor SO2 and, thus, 

lacks a trigger for the adjustment of sorbent injection if the SO2 emission rate of 0.028 

lb/MMBtu were exceeded.” Id. The Petitioner asserts that without emission limitations and 

adequate compliance monitoring, the facility’s SO2 emissions “may exceed the major source 

significance threshold for SO2 emissions of 40 tons [per] year set in H.A.R. § 11-60.1-1, which 

would require a [Best Available Control Technology (BACT)] analysis for SO2.” Id. at 8-9. 

EPA’s Response. I grant the Petitioner’s request for an objection to the Proposed Permit on this 

claim. I grant specifically in regard to the Petitioner’s contention that HDOH has failed to ensure 

that the synthetic minor limits for CO and NOx, which were intended to restrict CO and NOx 

PTE below the major source threshold of 250 tpy, are enforceable as a practical matter.13 

However, as explained more fully below, in light of this grant, I am not resolving other issues 

raised by the Petitioner in Claim 2. 

HDOH implements the PSD program under a delegation agreement with the EPA. Under the 

governing provisions in 40 C.F.R. § 52.21(b)(4), the calculation of a facility’s PTE for purposes 

of determining whether the facility triggers PSD requirements for a particular pollutant includes 

consideration of “[a] physical or operational limitation on the capacity of the source to emit [the] 

pollutant, including air pollution control equipment and restrictions on hours of operation or on 

the type or amount of material combusted, stored, or processed,...if the limitation or the effect it 

would have on emissions is federally enforceable.”14 In other words, “if a permit applicant 

agrees to an enforceable limit that is sufficient to restrict PTE, the facility’s PTE is calculated 

based on that limit.” In the Matter Of Cash Creek Generation, LLC, Order on Petition No. IV2010-4 at 15 (June 22, 2012) (Cash Creek Order). 

In this case, Hu Honua agreed to accept source-wide CO and NOx emission limits of less than 

250 tpy, see Final Permit, Section C.6, which along with other permit requirements, were 

intended to ensure that CO and NOx PTE remained below the major source threshold and thus 

avoid applicability of PSD requirements.15 Therefore, an EPA objection is warranted if the Final 

13 The EPA uses the term “synthetic minor” in this Order to reflect the fact that Hu Honua accepted operational and 

emissions limits in order to restrict its PTE for purposes of avoiding applicability of major source PSD and MACT 

requirements, as explained in more detail below. The EPA’s use of this term in this sense is not intended to affect 

HDOH’s conclusion that the source was not a “synthetic minor source” but rather a major source as defined in 

H.A.R. §§ 11-60.1-1 because the PTE for CO and NOx exceeded 100 tons per year. Final Permit Review Summary 

at 7. 

14 Although the federal definition of PTE for PSD includes the term "federally enforceable," following two court 

decisions, National Mining Association v. EPA, 59 F.3d 1351 (D.C. Cir.1995), and Chemical Manufacturers Ass'n v. 

EPA, No. 89-1514, 70 F.3d 637 and 1995 U.S. App. LEXIS 39215 (D.C. Cir. 1995), the EPA clarified that the term 

"federally enforceable" as used in relation to the definition of PTE for the federal PSD program in 40 C.F.R. § 

52.21(b)(4) should be read to mean "federally enforceable or legally and practicably enforceable by a state or local 

air pollution control agency." John Seitz, Director, Office of Air Quality Planning and Standards, and Robert Van 

Heuvelen, Director, Office of Regulatory Enforcement, "Release of Interim Policy on Federal Enforceability of 

Limitations on Potential to Emit" (Jan. 22, 1996), at 3. The term "federal enforceability" has also been interpreted to 

require practical enforceability. See, e.g., In re Shell Offshore, Inc., Kulluk Drilling Unit and Frontier Discoverer 

Drilling Unit, 13 E.A.D. 357 at 394, n.54 (EAB 2007). 

15 See Final Permit, Attachment II, Section C.8 (“This source is exempt from a [PSD] review ... due to the emission 

limits in Attachment II, Special Conditions Nos. C.6 ....”). Also, in response to a comment that if Hu Honua were 

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Permit does not impose enforceable limits on the source’s CO and NOx emissions such that 

source-wide emissions remain below 250 tpy, the applicable threshold for determining whether 

Hu Honua is a major stationary source for PSD purposes. 42 U.S.C. § 7479(1) (defining “major 

emitting facility”); 40 C.F.R. 52.21(b)(1)(i)(b) (defining “major stationary source”). 

To effectively limit Hu Honua’s CO and NOx PTE to less than 250 tpy, the CO and NOx 

emissions limits included in Section C.6 of the Final Permit must apply at all times to all actual 

emissions, and all actual CO and NOx emissions must be considered in determining compliance 

with the respective limits. See Cash Creek Order at 15 (finding that a VOC limit was not 

enforceable as a practical matter where the state agency “failed to provide a reasoned explanation 

for how the compliance demonstration method associated with the VOC emissions limit, which 

is used to determine compliance with the source-wide VOC limit, accounts for all actual VOC 

emissions”). The Final Permit for Hu Honua states that “CO and NOx emissions from the 

facility, including during boiler startups and shutdowns, shall not equal or exceed 250 tons per 

year, on any rolling twelve-month (12-month) period.” Final Permit, Section C.6. However, the 

Final Permit does not specify how the facility’s CO and NOx emissions shall be determined or 

measured for assessing compliance with these CO and NOx emission limits in Section C.6, and it 

is unclear whether all actual CO and NOx emissions must be considered in determining 

compliance with these limits, including emissions during other non-startup/shutdown operating 

conditions referenced in the permit, such as periods of “malfunction” or “upset conditions.” See, 

e.g., Final Permit, Sections F.3, F.8. and F.9. 

The EPA notes that the Final Permit does contain a condition in Section E.14 providing that the 

“permittee shall calculate and record the CO and NOx emissions from the facility, including 

during boiler startups and shutdowns, on a monthly and rolling twelve-month (12-month) basis.” 

Final Permit, Section E.14. The EPA additionally notes that the Final Permit requires submission 

of semi-annual monitoring report forms that include “CO and NOx emissions from the facility on 

a monthly and rolling twelve-month (12-month) basis.” Final Permit, Section F.6.a.vi. The Final 

Permit does not specify, however, how the CO and NOx emissions shall be calculated for 

purposes of these two conditions or what information such calculations would be based upon.16 

Nor does the Final Permit specifically connect the reports in Section F.6.a.vi.to determining 

compliance with the CO and NOx emission limits in Section C.6. In addition, these conditions do 

not clearly provide that all actual facility CO and NOx emissions should be considered in 

determining compliance with the CO and NOx emission limits in Section C.6 and do not clearly 

state that emissions during other non-startup/shutdown operating conditions referenced in the 

permit (such as malfunction or upset) must be included in determining compliance with those 

permitted as a synthetic minor source instead of as a PSD source the CO and NOx PTE limits would need to be 

made practicably enforceable, HDOH explained: “The permit has been revised with PSD emission caps for CO and 

NOx in Attachment II, Special Condition No.C.6., monitoring and recordkeeping requirements in Attachment II, 

Special Condition No.E.14, and additional semiannual reporting requirements to include the data in Attachment II, 

Special Condition No. F.6.a.vi.” 2011 RTC, Addendum B. at 3. In the Final Permit Review Summary, HDOH 

explained: “To ensure that PSD is not triggered, the permit limits the annual heat input to 2,800,000 MMBtu/yr. .... 

In addition to the annual heat input limit of 2,800,000 MMBtu/yr for the boiler, the permit also requires that the CO 

and NOx emissions from the facility, including during boiler startups and shutdowns, shall not exceed 250 tons per 

year, on any rolling twelve-month (12-month) period.” Final Permit Review Summary at 6. See also id. at 4 

(determining that PSD is a “non-applicable requirement”).

16 The EPA notes that the EPA Letter included a comment on adding conditions requiring the use of CEMS data to 

verify compliance with the annual CO and NOx emissions limitations. See EPA Letter at 4. 

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limits. In addition, Section F.6.a.vi does not clearly state that emissions during startup and 

shutdown (as well as emissions during other non-startup/shutdown operating conditions) must be 

included in the semi-annual reports or in determining compliance with the CO and NOx emission 

limits in Section C.6. 

In addition, the EPA notes that the Final Permit does not appear to contain any monitoring or 

recordkeeping requirements that would allow for calculation or consideration of any CO and 

NOx emissions associated with the operation of the emergency generator at the facility in 

determining compliance with the CO and NOx emission limits in Section C.6. Because, as 

currently provided in the Final Permit, the overall emission limits for CO and NOx in Section 

C.6. state that the source “shall not equal or exceed” 250 tpy, those facility-wide limits would be 

ineffective at ensuring that the source remains below the 250 tpy major source PSD threshold if 

any emission unit at the facility that emitted CO or NOx was not covered by those limits and/or 

not subject to sufficient monitoring, recordkeeping, and reporting to ensure that those limits were 

enforceable as a practical matter. 

Moreover, as defined for PSD purposes, PTE encompasses “the maximum capacity of a 

stationary source to emit a pollutant under its physical and operational design.” 40 C.F.R. 

§ 52.21(b)(4). Thus, emissions from all emission units that are part of the source’s physical and 

operational design must be included in calculating PTE for purposes of determining PSD 

applicability, including emission units that have been designated as “insignificant 

activities.”17 Similarly, the EPA has previously explained that when a source accepts a sourcewide PTE limit for a pollutant, all actual emissions of that pollutant from the source must be 

considered in determining compliance with the limit.18 Although HDOH treated the emergency 

generator as an “insignificant activity” under H.A.R. § 11-60.1-82(f)(5),19 that provision makes 

clear that a generator cannot qualify as an insignificant activity if it would trigger PSD review 

based on its PTE. H.A.R. § 11-60.1-82(f)(5)(B). Accordingly, the emergency generator’s actual 

CO and NOx emissions must be considered in determining the permit’s compliance 

requirements. 

The EPA acknowledges that Hu Honua accepted a fuel consumption limit on the boiler of 

2,800,000 MMBtu/yr in an effort “to ensure that plant utilization does not exceed the stated 

emission levels in the permit application and PSD thresholds are not exceeded.” See 2011 RTC, 

Addendum A at 11; see also Final Permit, Section D.1.a.iii. However, CO and NOx emissions at 

the facility are a function of both fuel consumption (MMBtu/yr) and the CO and NOx emissions 

rate (lb/MMBtu). The permit contains two short term emission limits (lb/MMBtu) for CO and 

one for NOx from the boiler (see Final Permit, Section C.1), and HDOH explained that 

17 This is consistent with the EPA’s guidance explaining how to calculate PTE for emergency generators, as the EPA 

would not have needed to provide this guidance if the EPA believed that emissions from emergency generators did 

not need to be considered in PTE calculations. See John Seitz, Director, Office of Air Quality Planning and 

Standards, “Calculating Potential to Emit (PTE) for Emergency Generators” (Sept. 6, 1995) (available at 

http://www.epa.gov/region07/air/title5/t5memos/emgen.pdf). This is also consistent with 40 C.F.R. § 70.5(c), which 

provides that a title V application “may not omit information needed to determine the applicability of, or to impose, 

any applicable requirement.”

18 See, e.g., Cash Creek Order at 15; In the Matter of Kentucky Syngas, LLC, Order on Petition No. IV-2010-9 at 29­

30 (Kentucky Syngas Order) (June 22, 2012). 

19 See Final Permit Review Summary at 3. 

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multiplying these emission limits by the 2,800,000 MMBtu/yr limit shows that the facility will 

not exceed 250 tpy for CO and NOx. See Final Permit Review Summary at 6. However, the Final 

Permit explicitly provides that the Section C.1 emission limits for NOx and one of those limits 

for CO do not apply during boiler startup and shutdown.20 See Final Permit, Section C.2. Thus, 

HDOH has not provided a basis in the record to conclude that the 2,800,000 MMBtu per year 

heat input limit will ensure that CO and NOx emissions from the facility will not exceed 250 tpy. 

Because the relevant short-term CO and NOx emission limits do not apply at all times, they do 

not ensure that the emission rate from fuel consumption at the boiler will not exceed the 

lb/MMBtu levels that HDOH used to explain why the 2,800,000 MMBtu/yr limitation would 

ensure that CO and NOx emissions will not exceed 250 tpy. 

For the reasons described above, I am granting the Petition regarding the Petitioner’s claim that 

the synthetic minor limits for CO and NOx limits are not enforceable as a practical matter. 

HDOH can respond to this objection by revising the Final Permit to ensure that the source-wide 

CO and NOx emission limits of less than 250 tpy in Section C.6 are enforceable. In doing so, 

HDOH should clarify in the Final Permit that those limits apply at all times to all actual facility 

CO and NOx emissions and that all actual CO and NOx emissions must be considered in 

determining compliance with those limits, and make any changes or clarifications necessary to 

the measures for determining compliance with those limits, including monitoring, recordkeeping, 

and reporting provisions, to ensure that those limits are enforceable as a practical matter. Under 

this approach, HDOH would also need to revise the Final Permit to clarify that CO and NOx 

emissions from the emergency generator must be included in determining whether the facility 

has exceeded the source-wide CO and NOx emission limits of less than 250 tons per year and add 

any necessary monitoring, recordkeeping, or reporting for the CO and NOx emissions from the 

emergency generator. Alternatively, HDOH may utilize another approach, consistent with the 

applicable PSD program, to ensure that PSD is not triggered for CO or NOx (including 

consideration of the emergency generator emissions) or it could respond to this objection by 

requiring Hu Honua to comply with the PSD requirements for CO and NOx. In addition, the EPA 

notes that although the Final Permit contains various monitoring, recordkeeping and reporting 

requirements in Sections E and F related to steam load, wood fuel use, wood heat input, wood 

sampling and analysis, biodiesel fuel meters, as well as other related requirements, the Final 

Permit is unclear regarding how annual fuel consumption will be determined for purposes of 

determining compliance with the 2,800,000 MMBtu/yr limit. In addressing this objection, 

assuming that HDOH retains this limit, it should also clarify in the permit specifically how 

compliance with this 2,800,000 MMBtu/yr limit will be calculated, including specifying how 

heat input will be determined for biodiesel. 

Because this grant focuses on the adequacy of the synthetic minor limits that were intended to 

restrict the facility’s PTE to minor source levels for PSD purposes, along with the monitoring, 

recordkeeping and reporting to ensure compliance with those limits, I am not resolving the 

separate issues raised in this claim of the Petition, including those regarding how the facility’s 

20 With respect to the other CO short term emissions limit, Section C.2 of the Final Permit simply states the “CO 

emission limit shall be based on a 3-hour average when conducting the performance test required in Attachment II, 

Special Condition No. G.1.a.” Section G.1.a of the Final Permit states that the permittee “shall not conduct 

performance tests during periods of startup, shutdown or malfunction.” 

12
 
 

 

 

 

 

 

 

 

 

 

 

 

PTE was calculated for PSD purposes. See Cash Creek Order at 15; Kentucky Syngas Order at 

30. In response to this grant, HDOH may take steps to ensure that the CO and NOx PTE limits 

are enforceable as a practical matter. If HDOH does so, PTE for CO may be calculated based on 

the CO limit, obviating concerns about the initial PTE calculations, and concerns about the 

enforceability of the CO and NOx PTE limits would be addressed. Depending on HDOH’s 

response to this objection, several issues raised in Claim 2 could be moot or substantively 

different. Thus, as explained above, it is an appropriate exercise of the EPA’s discretion and a 

reasonable use of agency resources to not resolve those issues. In particular, for these reasons, I 

am not resolving the separate issues in the Petition regarding: the CO PTE calculation and CO 

emission factors as raised in pages 6-8 of the Petition; the Petitioner’s contentions related to the 

lack of enforceable conditions limiting biodiesel usage as raised on page 9 of the Petition; and 

the other issues concerning enforceability of the CO and NOx limits and post-issuance testing 

and controls to limit CO and NOx emissions as raised on pages 9-10 of the Petition. See 

Kentucky Syngas Order at 30; Cash Creek Order at 15. 

With respect to the Petitioner’s assertions that the Draft Permit failed to include emissions 

limitations and monitoring for SO2, as raised in pages 8-9 in the Petition, the Petitioner suggests 

that without emission limits and adequate monitoring for SO2, Hu Honua’s emissions may 

exceed the 40 tpy “major source significance threshold” for SO2 “set in H.A.R. § 11-60.1-1,” 

which would trigger the need for a BACT analysis for SO2. Petition at 8-9. To the extent that the 

Petitioner is asserting a claim about applicability of federal BACT requirements, the EPA notes 

that because PSD is implemented under a delegation agreement in Hawaii, the significance 

threshold for SO2 for purposes of determining whether a new major stationary source in Hawaii 

has a BACT requirement under the PSD program would be found in 40 C.F.R. § 

52.21(b)(23)(i).Thus, at the time Hu Honua’s Final Permit was issued, any determination of 

whether Hu Honua was subject to a federal BACT requirement for SO2 would have been made 

with reference to the significant emissions rate in 40 C.F.R. § 52.21(b)(23)(i). The EPA further 

notes that the Final Permit does include an emission limit for SO2, and SO2 is also addressed in 

some of the source testing requirements. See Final Permit Section C.1 (limiting SO2 emissions 

from the boiler to 0.028 lb/MMBtu) and Section G.1.a and G.2 (addressing SO2 in boiler 

performance testing). 

If, in response to the objection described above, HDOH takes steps to ensure that the Final 

Permit contains restrictions on CO and NOx PTE that are legally and practicably enforceable and 

that have the effect of restricting sourcewide CO and NOx PTE below 250 tpy, Hu Honua would 

not be a major source for PSD purposes, so analysis regarding the applicability of federal 

requirements for SO2 for major sources would be unnecessary. Alternatively, to the extent that 

the Petitioner is asserting that a minor source limit was deficient or that a minor source 

requirement was not satisfied, that claim, as applicable, could be moot if HDOH responds to the 

grant in this claim by permitting Hu Honua as a PSD source. If HDOH takes steps to ensure that 

Hu Honua’s PSD synthetic minor limits are legally and practicably enforceable, any claims 

relating to minor NSR requirements would be more appropriately addressed if and when HDOH 

assesses whether any applicable SIP-approved minor source requirements should be included in 

a revised permit. 

Because this issue could be moot or substantively different depending on HDOH’s response to 

my objection in this claim, I am not resolving the issues raised on pages 8-9 of the Petition 

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related to SO2. As explained above, it is an appropriate exercise of the EPA’s discretion and a 

reasonable use of agency resources to not resolve this claim. Depending on how HDOH revises 

the permit in light of this grant, I suggest that HDOH also consider the technical issues raised in 

Claim 2 with respect to SO2, as applicable, particularly whether SO2 monitoring is required to 

ensure that SO2 emissions do not exceed the 0.028 lb/MMBtu limit in Section C.1. 

C. CLAIM 3: The Permit Fails to Ensure Compliance with BACT Requirements 

for CO 

Petitioner’s Claim. The Petitioner asserts that BACT is required for CO because “Hu Honua’s 

CO calculated emissions of 245.4 tons/year exceed the significance level of 100 tons/year 

established by H.A.R. § 11-60.1-1.” Petition at 10. The Petitioner then asserts that the CO 

emission limit contained in the permit “is not BACT.” Id. Citing to the definition of BACT in 

H.A.R. § 11-60.1-1, and in CAA § 169(3), 42 U.S.C. § 7479(3), as well as to several title V 

Orders, the Petitioner contends: “While “Hu Honua’s BACT Analysis purports to follow the 

“top-down” process, the BACT analysis of CO is incomplete” because: (1) “the emission 

limitation identified as BACT excludes startup and shutdown” without explaining why such 

exclusion is appropriate; and (2) “the analysis identifies significantly lower CO emission limits 

at another facility... but does not describe...why Hu Honua could not achieve comparable 

emissions.” Id. at 10-11. The Petitioner therefore asserts “the [BACT] analysis is legally 

inadequate.” Id. at 11. 

EPA’s Response. Since I am granting the Petitioner’s request for an objection to the Proposed 

Permit based on Claim 2, I am not resolving the Petitioner’s request for an objection to the 

Proposed Permit on this claim. As explained in the response to Claim 2, the EPA is granting the 

Petition regarding the synthetic minor limits for CO because the EPA has determined that the 

limits in the Final Permit that were intended to restrict CO PTE below the major source threshold 

are not practicably enforceable. In response to that grant, HDOH may take steps to ensure that 

those limits are practicably enforceable. If HDOH takes steps to ensure that the Final Permit 

contains restrictions on CO PTE that are legally and practicably enforceable and that have the 

effect of restricting source-wide CO PTE below 250 tpy, Hu Honua would not be a major source 

of CO. At the time the Final Permit was issued, the only federal BACT requirement that could 

have applied to Hu Honua would have been the BACT requirement under the PSD program in 40 

C.F.R. § 52.21. If Hu Honua is not a major source of CO, analysis regarding the applicability of 

federal requirements for major sources of CO to Hu Honua would be unnecessary. Alternatively, 

to the extent that the Petitioner is asserting that a minor source limit was deficient, that claim, as 

applicable, would be moot if HDOH treats Hu Honua as a major source. If HDOH takes steps to 

ensure that Hu Honua’s PSD synthetic minor limits are legally and practicably enforceable, any 

claims relating to minor NSR requirements would be more appropriately addressed if and when 

HDOH assesses whether any applicable SIP-approved minor source requirements should be 

included in a revised permit. 

Accordingly, I am not resolving this claim. As described in Section II., the CAA affords the EPA 

discretion in deciding how it responds to each title V petition. In this instance, some questions 

could be moot and others could be substantively different depending on HDOH’s response to the 

issues upon which the EPA grants in this Order. Thus, it is an appropriate exercise of the EPA’s 

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discretion and a reasonable use of agency resources to not resolve this claim. I suggest that when 

HDOH revises the permit in light of my grant on Claim 2, HDOH consider the specific technical 

issues raised in Claim 3 in those revisions, as applicable. 

D. CLAIM 4: The Permit Fails to Ensure Compliance with Hazardous Air 

Pollutant Emission Limits 

Petitioner’s Claim. The Petitioner contends generally that HAP emissions from Hu Honua 

“would result in [Hu Honua] exceeding the 25 tpy major source threshold” if the HAP emissions 

estimate had been based on more accurate HCl and acrolein emissions factors. Petition at 11-12. 

The Petitioner asserts Hu Honua “avoid[s] numerous requirements applicable to major HAP 

sources,” which results in “a seriously flawed permit that is wholly incapable of ensuring 

compliance with section 112 of the CAA.” Id. at 12. 

The Petitioner makes four sub-arguments related to this claim and to whether Hu Honua is a 

major source of HAP. See generally Petition at 11-14. First, the Petitioner asserts Hu Honua 

“calculated [an emission factor for HCl] by picking favorable, low chlorine numbers from the 

range of test surveys” of eucalyptus wood test data as opposed to using AP-42 emission 

factors.

21 Id. at 12 (listed as Claim 4A in the Petition). The Petitioner alleges “[t]he permit limits 

are based on chlorine concentration of 0.03%, when an average of the 6 eucalyptus samples 

included in Table 2-A of Appendix D showed an average chlorine concentration of 0.12%, and a 

high of 0.434% in rose gum bark.” Id. The Petitioner also alleges that “Hu Honua skewed the 

chlorine concentration of Project feedstock and emissions by omitting the highest concentration 

feedstock – rose gum bark – and including the lowest concentration – rose gum without bark – 

even though the Revised Draft Permit includes bark in the boiler’s feedstock.” Id. The Petitioner 

asserts that using a higher emission factor “that is more representative of the boiler’s feedstock” 

would considerably increase the HCl PTE and would likely have resulted in Hu Honua 

“exceeding the major source threshold for HAPs of 25 tpy.” Id. 

Second, the Petitioner asserts that emissions for acrolein were based on emission factors from the 

Maine Department of Environmental Protection (Maine DEP), which do not take into account 

tropical eucalyptus as a common feedstock. Petition at 12-13 (listed as Claim 4B in the Petition). 

The Petitioner states “EPA Region IX expressed serious concern regarding the accuracy of the 

Maine DEP emission factor,” quoting the EPA Letter, which noted the absence of source test 

requirements in the permit “to verify that the proposed emission factor is accurate for wood 

combustion at Hu Honua.” Id. at 13. The Petitioner asserts “if the HAP calculation had been 

based on the AP-42 emission factor for acrolein, acrolein emissions would be 5.6 tpy and total 

HAPs would be 29 tpy, which exceeds the HAP major source threshold.” Id. The Petitioner 

asserts “[b]ecause the accuracy of the Maine DEP emission factor with respect to eucalyptus 

feedstock for Hu Honua is not verified, the more conservative AP-42 emission factor must be 

used in the PTE calculations.” Id. 

Third, citing to the periodic monitoring requirements of 40 C.F.R. §§ 70.6(a)(3) and 71.6(a)(3), 

and the EPA’s Periodic Monitoring Guidance, as well as H.A.R. § 11-60.1-90(7)(B), the 

21 AP-42, Compilation of Air Pollutant Emission Factors, has been published since 1972 as the primary compilation 

of the EPA's emission factor information. 

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Petitioner asserts the Revised Draft Permit “fails to include adequate assurances that the irregular 

fuel source...will be monitored at sufficient frequencies to assure achievement of the emissions 

limitations.” Petition at 13 (listed as Claim 4C in the Petition). The Petitioner states that “EPA 

Region IX commented that an initial source test and annual source testing is required to ensure 

that emissions from Hu Honua do not exceed the major source thresholds of 10 tpy and 25 tpy 

for all HAPs.” Petition at 13. The Petitioner asserts that initial and annual source testing is not 

sufficient; instead, the Petitioner asserts that “because the wood fuel stock is naturally variable, 

more frequent source testing – preferably continuous – is required for all HAPs (not only HCLsee Special Condition E.7.).” Id. The Petitioner asserts such monitoring is necessary to “provide 

sufficiently reliable and timely information for determining compliance.” Id. at 13, citing to 42 

U.S.C. § 7661c(b). The Petitioner asserts that because the Revised Draft Permit fails to include 

such monitoring, “it fails to ensure the facility’s compliance with emission limits.” Id. at 14. 

Fourth, the Petitioner notes Hu Honua’s permit application reported total HAP emission at 23.8 

tpy, which are “very close to the HAP Major Source threshold of 25 tons.” Petition at 14 (listed 

as Claim 4D in the Petition). The Petitioner alleges “if Hu Honua had applied the AP-42 

emission factors to HCl, acrolein, or both, [Hu Honua’s] emissions would exceed the 25 tpy 

major source threshold for MACT applicability.” Id. 

EPA’s Response. I grant the Petitioner’s request for an objection to the Proposed Permit on this 

claim. I grant specifically in regard to the Petitioner’s contentions that the Proposed Permit fails 

to ensure that individual and total HAP emissions will be below the respective 10 and 25 tpy 

major source thresholds. While HDOH included synthetic minor limits for HAP in the Final 

Permit, which were intended to restrict HAP PTE below the individual HAP major source 

threshold of 10 tpy and the total HAP major source threshold of 25 tpy22, these limits are not 

enforceable as a practical matter. As explained more fully below, in light of this grant, I am not 

resolving some of the issues raised by the Petitioner in Claim 4. 

Under the governing provisions of CAA § 112(a) and 40 C.F.R. § 63.2, the calculation of a 

source’s PTE for purposes of determining whether the source triggers requirements for major 

stationary sources of HAP includes consideration of “any physical or operational limitation on 

the capacity of the stationary source to emit a pollutant, including air pollution control equipment 

and restrictions on hours of operation or on the type or amount of material combusted, stored, or 

processed, .... if the limitation or effect it would have on emissions is federally enforceable.”23 

See also H.A.R. § 11-60.1-1. As we have stated, “if a permit applicant agrees to an enforceable 

limit that is sufficient to restrict PTE, the facility’s PTE is calculated based on that limit.” Cash 

Creek Order at 15. In this case, Hu Honua agreed to accept source-wide individual HAP and 

22As HDOH explained in the Final Permit Review Summary: “To ensure that the facility remains an area source for 

HAPs, the permit requires the total of all HAPs emissions and any individual HAP emissions from the facility, 

including during boiler startups and shutdowns, shall not exceed 25 tons per year and 10 tons per year, respectively, 

on any rolling twelve month period.” Final Permit Review Summary at 7; see also 2011 RTC at 6. 

23 The definition of PTE for HAP in 40 C.F.R. § 63.2 includes the term “federally enforceable.” Consistent with the 

court decisions, National Mining Association v. EPA, 59 F.3d 1351 (D.C. Cir.1995) and Chemical Manufacturers 

Ass'n v. EPA, No. 89-1514, 70 F.3d 637 (D.C. Cir. 1995), permit terms to limit HAP emissions must be federally 

enforceable. The term “federal enforceability” has also been interpreted to require practical enforceability. See John 

Seitz and Robert Van Heuvelen, “Release of Interim Policy on Federal Enforceability of Limitations on Potential to 

Emit” (Jan. 22, 1995) at 2- 3. 

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total HAP emission limits of less than 10 tpy and less than 25 tpy, respectively. See Final Permit, 

Section C.7. Therefore, an EPA objection regarding whether Hu Honua’s Final Permit ensures 

compliance with requirements for major stationary sources of individual HAP and total HAP is 

warranted if the permit does not impose enforceable limits on the source’s individual and total 

HAP emissions such that source-wide emissions remain below 10 tpy for individual HAP and 25 

tpy total HAP, the applicable thresholds for determining whether Hu Honua is a major stationary 

source of HAP. 42 U.S.C. § 7412(a)(1); 40 C.F.R. § 63.2; H.A.R. § 11-60.1-1. 

To effectively limit Hu Honua’s individual HAP and total HAP PTE to less than 10 and 25 tpy, 

respectively, as specified, the individual and total HAP emission limits in Section C.7 of the 

Final Permit must apply at all times to all actual emissions, and all actual individual and total 

HAP emissions must be considered in determining compliance with the respective limits. See 

Cash Creek Order at 15 (finding that a VOC limit was not enforceable as a practical matter 

because the state agency “failed to provide a reasoned explanation for how the compliance 

demonstration method associated with the VOC emissions limit, which is used to determine 

compliance with the source-wide VOC limit, accounts for all actual VOC emissions”). The Final 

Permit for Hu Honua states that “the total of all HAPs emissions and any individual HAP 

emissions from the facility, including during boiler startups and shutdowns, shall not equal or 

exceed 25 tons per year and 10 tons per year, respectively, on any rolling twelve-month (12­

month) period.” Final Permit, Section C.7. However, the Final Permit does not specify how the 

facility’s individual HAP and total HAP emissions shall be determined or measured for assessing 

compliance with these individual HAP and total HAP emission limits in Section C.7, and it is 

unclear whether all actual individual HAP and total HAP emissions must be considered in 

determining compliance with these limits, including emissions during other nonstartup/shutdown operating conditions referenced in the permit, such as periods of “malfunction” 

or “upset conditions.” See, e.g., Final Permit, Sections F.8, F.9, and F.3. 

The EPA notes that the Final Permit does contain a condition in Section E.15 providing that the 

“permittee shall calculate and record the total of all HAPs and all individual HAP emissions 

from the facility, including during boiler startups and shutdowns, on a monthly and rolling 

twelve-month (12-month) basis.” See Final Permit, Section E.15. The EPA additionally notes 

that the Final Permit requires submission of semi-annual monitoring report forms that include 

“the total of all HAPs emissions and the largest individual HAP emissions from the facility on a 

monthly and rolling twelve-month (12-month) basis.” Final Permit, Section F.6.a.vii. However, 

the Final Permit does not specify how the total HAP and individual HAP emissions shall be 

calculated for purposes of these two conditions or what information such calculations would be 

based upon. Nor does the Final Permit specifically connect the calculations in Section F.6.a.vii.to 

determining compliance with the individual HAP and total HAP emission limits in Section C.7. 

In addition, these conditions do not clearly provide that all actual source-wide total HAP and 

individual HAP emissions should be considered in determining compliance with the total HAP 

and individual HAP emission limits in Section C.7 and do not clearly state that emissions during 

other non-startup/shutdown operating conditions referenced in the permit (such as malfunction or 

upset) must be included in determining compliance with those limits. In addition, Section 

F.6.a.vii does not clearly state that emissions during startup and shutdown must be included in 

determining compliance with the total HAP and individual HAP emission limits in Section C.7. 

17
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The EPA further notes that the Final Permit does not appear to contain any monitoring or 

recordkeeping requirements that would allow for calculation or consideration of any total HAP 

and individual HAP emissions associated with the operation of the emergency generator at the 

source in determining compliance with the total HAP and individual HAP emission limits in 

Section C.7. 

Moreover, as defined for purposes of determining whether a stationary source is a major source 

of HAP, PTE encompasses “the maximum capacity of a stationary source to emit a pollutant 

under its physical and operational design.” 40 C.F.R. § 63.2; H.A.R. § 11-60.1-1. Thus, 

emissions from all emission units that are part of the source’s physical and operational design 

must be included in calculating PTE for purposes of determining HAP major source 

applicability, including emission units that have been designated as “insignificant activities.”24 

Similarly, the EPA has previously explained that when a source accepts a source-wide PTE limit 

for a pollutant, all actual emissions of that pollutant from the source must be considered in 

determining compliance with the limit.25 Although HDOH treated the emergency generator as an 

“insignificant activity” under H.A.R. § 11-60.1-82(f)(5), that provision states that a generator 

cannot qualify as an insignificant activity if it would trigger a covered source review based on its 

PTE for HAP. H.A.R. § 11-60.1-82(f)(5)(B). Accordingly, the emergency generator’s actual total 

HAP and individual HAP emissions must be considered in determining whether Hu Honua is 

subject to various requirements. 

For these reasons, I am granting the Petition regarding the Petitioner’s claim that “the permit 

fails to ensure [Hu Honua’s] compliance with emission limits,” for all individual HAP and total 

HAP in Section C.7. of the Proposed Permit, and accordingly cannot ensure that emissions from 

Hu Honua do not exceed the major source threshold of 10 tpy for each HAP and 25 tpy for all 

HAP. 

HDOH can respond to this objection on this claim by revising the Final Permit to ensure that the 

source-wide total HAP and individual HAP emission limits of less than 25 tpy and 10 tpy, 

respectively, in Section C.7 are enforceable. To do so, HDOH should clarify in the Final Permit 

that those limits apply at all times to all actual source-wide individual HAP and total HAP 

emissions and that all actual individual HAP and total HAP emissions must be considered in 

determining compliance with those limits. HDOH should also make any changes or clarifications 

necessary to the measures for determining compliance with those limits, including monitoring, 

recordkeeping, and reporting provisions, to ensure that those limits are enforceable as a practical 

matter. In identifying in the Final Permit the measures for determining compliance with the 

individual HAP and total HAP emission limits, HDOH should specify how the actual annual 

total HAP and individual HAP emissions will be calculated, including what, if any, emission 

rates determined pursuant to Section G.1.c.i. would be used and how calculations using such 

24 This is consistent with the EPA’s guidance explaining how to calculate PTE for emergency generators, as the 

EPA would not have needed to provide this guidance if the EPA believed that emissions from emergency generators 

did not need to be considered in PTE calculations. See John Seitz, Calculating Potential to Emit (PTE) for 

Emergency Generators (Sept. 6, 1995) (available at http://www.epa.gov/region07/air/title5/t5memos/emgen.pdf). 

This is also consistent with 40 CFR § 70.5(c), which provides that a title V application “may not omit any 

information needed to determine the applicability of, or impose, any applicable requirement.”

25 See, e.g., Cash Creek Order at 15; Kentucky Syngas Order at 29. 

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rates would ensure that actual annual total HAP and individual HAP emissions remain below the 

respective 25 and 10 ton per year limits. 

Under this approach, HDOH could revise the Final Permit to clarify that all actual individual 

HAP and total HAP emissions from the source, including emissions during all actual operational 

scenarios and from the emergency generator, must be included in determining whether the source 

has exceeded the source-wide individual HAP and total HAP emission limits of less than 10 tpy 

and 25 tpy, respectively, and add any necessary monitoring, recordkeeping, or reporting for the 

individual HAP and total HAP emissions from the boiler and the emergency generator. 

Alternatively, HDOH may utilize another approach, consistent with H.A.R. § 11-60.1-5 and 

Hawaii’s approved title V program, to ensure that major stationary source requirements are not 

triggered for individual HAP or total HAP, or it could respond to this objection by requiring Hu 

Honua to comply with applicable major stationary source requirements. 

Accordingly, as described above, I am granting the Petitioner’s claim that the Proposed Permit 

fails to ensure that individual and total HAP emissions will be below the respective 10 tpy and 

25 tpy major source thresholds. To ensure that it does, the synthetic minor limits for individual 

and total HAP emissions in Section C.7 of the Final Permit must be enforceable as a practical 

matter. In response to this grant, HDOH may take steps to ensure that the individual and total 

HAP PTE limits apply to all source-wide emissions and are enforceable as a practical matter in 

order to address concerns about the enforceability of those limits. When the Final Permit is so 

modified, PTE for individual and total HAP emissions may be calculated based on the HAP 

limits. Depending on HDOH’s response to this objection, several issues raised in Claim 4 could 

be moot or substantively different. Thus, it is an appropriate exercise of the EPA’s discretion and 

a reasonable use of agency resources to not resolve those issues. For these reasons, I am not 

resolving the separate issues in the Petition regarding: whether Hu Honua used appropriate 

emission factors in determining potential HCL and acrolein emissions and whether Hu Honua 

would exceed the major stationary source threshold of 25 tpy of total HAP raised on pages 11-13 

and 14 of the Petition. See Kentucky Syngas Order at 30; Cash Creek Order at 15. 

E. CLAIM 5: The Baghouse is Not Adequately Described or Monitored 

Petitioner’s Claim. The Petitioner contends “the Revised Draft Permit fails to ensure continuous 

compliance with the proposed BACT limits for PM as required by Condition C.4.” Petition at 14. 

In support of its arguments, the Petitioner states that the Revised Draft Permit “fails to include an 

adequate description of the baghouse (e.g. number of bags, capacity) or any conditions 

specifying maintenance and inspection requirements for baghouse operations.” Id. The Petitioner 

also asserts that initial and annual source tests and the continuous opacity monitoring system 

(COMS) are inadequate to assure compliance with the PM BACT limits. Id. 

EPA’s Response. I deny the Petitioner’s request for an objection to the Proposed Permit on this 

claim. This claim does not appear to be based on the Proposed Permit. See, e.g., 40 C.F.R. §§ 

70.7(c) and (d). In the Petition, this claim does not cite to the Proposed Permit, but refers only to 

the Revised Draft Permit. The claim does not address many relevant terms and conditions in the 

Proposed Permit that describe the baghouse and relevant monitoring requirements for controlling 

PM emissions. For example, the Petitioner does not address the following requirements that were 

19
 
 

 

 

 

 

 

 

 

 

 

included in the Proposed Permit: (1) section A.1.a.i, which describes the type of Electrostatic 

Precipitator (ESP) and Baghouse to be used at the facility as a “B & W Pulse Jet Fabric Filter or 

equivalent;” (2) section D.2.a, which states that the permittee shall not operate if a problem 

affecting PM control efficiency of the ESP and/or baghouse could cause the ESP and/or 

baghouse to operate outside the respective normal range; (3) sections D.2.b-d, which contain 

further routine maintenance requirements to ensure the ESP and baghouse are operating 

properly; (4) section E.12, which requires the facility to install a pressure drop meter on the 

baghouse, which is to be monitored and recorded daily; and (5) sections F.6.a.iii-iv, which 

require further semi-annual monitoring and recordkeeping of the ESP and baghouse. See 

Proposed Permit, Attachment II. The EPA notes these same requirements are also included in the 

Final Permit. 

By not addressing these control technologies and maintenance and recording requirements in the 

Proposed Permit, the Petitioner has not demonstrated that these and other requirements in the 

Proposed Permit are insufficient to ensure that the boiler will meet its PM limits. In other words, 

the Petitioner has not demonstrated that the Proposed Permit “is not in compliance with the 

requirements of [the CAA.]” CAA § 505(b)(2). The EPA interprets the “demonstration” 

requirement in CAA § 505(b)(2) as “placing the burden on the Petitioner to supply information 

to the EPA sufficient to demonstrate the validity of the objection raised to the title V permit,” In 

the Matter of Luminant Generation Co. – Sandow 5 Generating Plant, Order on Petition Number 

VI-2011-05 at 9 (Jan. 15, 2013) (Luminant Order); see also MacClarence, 596 F.3d at 1131 

(affirming denial of a petition where the petitioner had not provided legal reasoning, evidence, 

and references to support the claim). The Petitioner’s general assertion that the Revised Draft 

Permit fails to ensure compliance with PM limits is conclusory and without supporting 

information, thus falling short of demonstrating “the validity of the objection raised” in the 

Petition. Luminant Order at 9. The Petitioner states that the Revised Draft Permit “fails to ensure 

continuous compliance with the proposed BACT limits for PM as required by C.4,” but only 

cites to the March 21, 2011, Pless comment letter as evidence for this claim. See March 21, 2011 

Pless Letter at 6. However, the comment letter contains no additional supporting information for 

the Petitioner’s position. The letter lists “example” requirements taken from permits for other 

biomass facilities with baghouses, without explaining why these example provisions would be 

more effective for ensuring that Hu Honua’s boiler will meet its PM limits. HDOH actually 

included some of these “example” provisions in the Proposed Permit, which the Petitioner did 

not address in its Petition. 

For the foregoing reasons, I deny the Petition as to this claim. 

F.	 CLAIM 6: The Permit Fails to Ensure Compliance with Applicable HAR and 

SIP Requirements 

Petitioner’s Claim. The Petitioner asserts the permit “does not comply with” H.A.R. § 11-60.1­

179 and Hawaii’s SIP because “the Permit fails to ensure [Hu Honua] will not emit HAPs and 

criteria air pollutants at levels injurious to human health.” Petition at 15. The Petitioner states 

that H.A.R. § 11-60.1-179 “prohibits the emission of HAPs from any stationary source in 

quantities that contribute to an ambient air concentration that endangers human health, and 

provides that any new major source of hazardous air pollutants must demonstrate that emissions 

20
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

of HAPs from the source will not contribute to any significant ambient concentrations of HAPs.” 

Id. at 14-15 (emphasis in original). The Petitioner also states that Hawaii’s SIP “similarly 

prohibits any person from permitting or causing air pollution, defined as ‘the presence in the 

outdoor atmosphere of one or more air pollutants in such quantities and duration as is or tends to 

be injurious to human health or welfare.’” Id. at 15, citing H.A.R. §§ 11-60-17, 11-60-1 (def. 

“Air Pollution”). The Petitioner asserts Hu Honua “severely underestimated its emissions of both 

HAPs and criteria air pollutants, and accordingly the modeling underestimated the facility’s 

health risk.” Id. The Petitioner also states that “the accuracy of the meteorological data used in 

the modeling is questionable, given that it was collected at Hilo Airport and not Pepe’ekeo,” 

where Hu Honua will be operating. Id. The Petitioner insists Hu Honua “provides no support for 

[its] assertion” that “wind flow patterns are comparable” between the two locations. Id. 

EPA’s Response. I deny the Petitioner’s request for an objection to the Proposed Permit on this 

claim. Regarding whether the Proposed Permit fails to comply with the prohibition on HAP 

emissions contained in H.A.R. § 11-60.1-179, this provision is a state only requirement and not a 

part of Hawaii’s SIP; therefore, it is not an applicable requirement for purposes of title V and not 

subject to review in a title V petition. See 40 C.F.R. § 70.2. 

Regarding whether the Proposed Permit fails to comply with the general prohibition on air 

pollution contained in H.A.R. § 11-60-17 (renumbered as H.A.R. § 11-60.1-2 in 2012 (see 77 

Fed. Reg. 25084)), the Petitioner has not demonstrated that the Proposed Permit is not in 

compliance with the applicable requirements of the Act. The EPA has pointed out in numerous 

orders that, in particular cases, general assertions or allegations did not meet the demonstration 

standard. See, e.g., Luminant Order at 9; In the Matter of BP Exploration (Alaska) Inc., 

Gathering Center #1, Order on Petition Number VII-2004-02 at 8 (Apr. 20, 2007) (BP Alaska 

Order); In the Matter of Chevron Products Co., Richmond, Calif. Facility, Order on Petition No. 

IX-2004-10 at 12, 24 (Mar. 15, 2005) (Chevron Order). Also, if the petitioner did not address a 

key element of a particular issue, the petition should be denied. See, e.g., In the Matter of Public 

Service Company of Colorado, dba Xcel Energy, Pawnee Station, Order on Petition Number: 

VIII-2010-XX at 7–10 (June 30, 2011) (Pawnee Order); In the Matter of Georgia Pacific 

Consumer Products LP Plant, Order on Petition No. V-2011-1 at 10–11, 13–14 (July 23, 2012) 

(Georgia Pacific Order). Here, the Petitioner only makes general assertions and fails to analyze 

the actual elements of the provision. H.A.R. § 11-60.1-2 contains a general prohibition against 

“air pollution or ...the emissions of any regulated or hazardous air pollutants without first 

securing approval in writing” from HDOH. The Petitioner does not demonstrate how the 

Proposed Permit fails to ensure compliance with this provision. For example, the Petitioner does 

not identify which “air pollutant,” as defined in H.A.R. § 11-60.1-1, Hu Honua is emitting 

inconsistent with the general prohibition, nor does it allege that Hu Honua is doing so without 

“approval in writing” from HDOH. Moreover, general assertions regarding inappropriate use of 

meteorological data and wind flow patterns are not adequate to demonstrate that the permit is 

inconsistent with the general prohibition on air pollution in the SIP. See MacClarence, 596 F.3d 

at 1131-1133; Luminant Order at 9; Chevron Order at 12, 24; In the Matter of Transalta 

Centralia Generation, LLC, Order on Petition Regarding Permit No. SW98-8-R3 at 4-8 (April 

28, 2011) (Transalta Order); In the Matter of Hercules, Inc., Order on Petition Number: IV2003-01 (November 10, 2004) (Hercules Order). 

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Additionally, the Petitioner did not address the information in the record, which was available to 

the Petitioner during the permit review period, concerning the ambient air quality modeling for 

criteria pollutants for this permit. See, e.g. Permit Application at 17-30; Revised Permit 

Application at 29-45; Draft Permit Review Summary and Revised Draft Permit Review 

Summary at 13-16. The Petitioner also provides no additional information regarding why the 

wind flow patterns at Hilo International Airport would not be appropriate for use in Hu Honua’s 

modeling analysis. Furthermore, the Petitioner does not demonstrate that the use of airport data is 

inconsistent with the EPA’s Guidelines on the use of meteorological data in Appendix W of 40 

C.F.R. part 51. See Kentucky Syngas Order at 41 (denying title V petition issue where petitioners 

failed to acknowledge or reply to state’s response to comments or provide a particularized 

rationale for why the state erred or the permit was deficient). 

For the foregoing reasons, I deny the Petition as to this claim. 

G. CLAIM 7: The Permit Fails to Ensure Compliance with MACT Requirements 

Petitioner’s Claim. The Petitioner claims that Hu Honua is a major source of HAP and is 

therefore “required to obtain from [HDOH] an approved MACT determination according to one 

of the review options specified in the applicable regulation.” Petition at 15, citing 40 C.F.R. § 

63.43; H.A.R. §§ 11-60.1-174, 11-60.1-175. The Petitioner also alleges “[b]ecause Hu Honua 

“artificially reduced its HAP emission thresholds to avoid Major Source classification, no 

MACT determination was sought.” Id. 

EPA’s Response. Since I am granting the Petitioner’s request for an objection to the Proposed 

Permit based on Claim 4, I am not resolving the Petitioner’s request for an objection to the 

Proposed Permit on this claim. As explained in the response to Claim 4, the EPA is granting the 

Petition regarding the HAP limits because the EPA has determined that the limits in the Final 

Permit that were intended to restrict HAP PTE below the major source thresholds

26 are not 

practicably enforceable. In response to that grant, HDOH may take steps to ensure that those 

limits are practicably enforceable. When HDOH takes steps to ensure that the Final Permit 

contains restrictions on HAP PTE that are legally and practicably enforceable and that have the 

effect of restricting source-wide HAP PTE below 10 tpy for individual HAP and 25 tpy for total 

HAP, Hu Honua would not be a major source of HAP. If Hu Honua is not a major source of 

HAP, analysis regarding the applicability of federal requirements for major sources of HAP to 

Hu Honua would be unnecessary. Accordingly, I am not resolving this claim. As described in 

Section II., the CAA affords the EPA with discretion in deciding how it responds to each title V 

petition. In this instance, some questions could be moot and others could be substantively 

different depending on HDOH’s response to the issues upon which the EPA grants in this Order. 

Thus, it is an appropriate exercise of the EPA’s discretion and a reasonable use of agency 

resources to not resolve this claim. Depending on how HDOH revises the permit in light of my 

grant on Claim 4, I suggest that HDOH consider the specific issues raised in Claim 7 in those 

revisions, and make any necessary changes to the permit or permit record. 

26As HDOH explained in the Final Permit Review Summary: “To ensure that the facility remains an area source for 

HAPs, the permit requires the total of all HAPs emissions and any individual HAP emissions from the facility, 

including during boiler startups and shutdowns, shall not exceed 25 tons per year and 10 tons per year, respectively, 

on any rolling twelve month period.” Final Permit Review Summary at 7; see also 2011 RTC at 6. 

22
 
 

 

 

 

 

H. CLAIM 8: The Permit Impermissibly Exempts Startup and Shutdown from 

Emission Limits 

Petitioner’s Claim. The Petitioner alleges that “the Revised Draft Permit fails to ensure 

compliance with applicable requirements” because Condition C.2 of the Revised Draft Permit 

fails to require compliance with emission limits on the boiler for NOx, VOC, CO, and HCl 

during boiler startup and shutdown. Petition at 15-16. The Petitioner contends that this 

exemption violates requirements of federal and state law. Id. at 15-16, citing Sierra Club v. EPA, 

551 F.3d 1019 (D.C. Cir. 2008); CAA §§ 110(a) and 504(a); EPA’s Memorandum re Vacatur of 

Startup, Shutdown, and Malfunction Exemption (July 22, 2009); and H.A.R. § 11-60.1-16 

(which the Petitioner states “requires reporting of ‘deviations’”). The Petitioner also contends 

that the exemption in Condition C.2 “improperly excludes a significant portion of the facility’s 

emissions that must be included in the permit for purposes of calculating [PTE] and the 

applicability of Major Source procedures and requirements, including PSD and MACT 

requirements.”Id. at 16. 

EPA Response: Since I am granting the Petitioner’s request for an objection to the Proposed 

Permit based on Claims 2 and 4, I am not resolving the Petitioner’s request for an objection to 

the Proposed Permit on this claim as it relates to the PTE calculations, but I am granting with 

respect to the Petitioner’s claim regarding the exemption in Section C.2 because the permit 

record does not provide an adequate rationale for this exemption that would allow the EPA to 

evaluate whether it is consistent, or not, with federal law, in light of the applicable requirements 

and requirements of title V for Hu Honua. 

With respect to the PTE calculations for CO, NOx, and HCl, the Petitioner claims that Section 

C.2 “improperly excludes a significant portion of the facility’s emissions that must be included 

in the permit for purposes of calculating the potential to emit and the applicability of Major 

Source procedures and requirements, including PSD and MACT requirements.” Petition at 16. 

As explained above, the EPA is granting on Claims 2 and 4 because it has determined that the 

synthetic minor limits in the Final Permit for CO, NOx, individual HAP and total HAP emissions 

are not practicably enforceable. In response to that grant, HDOH may take steps to ensure that 

those source-wide limits are practicably enforceable such that Hu Honua is neither a major 

stationary source for PSD nor a major source of HAP. 42 U.S.C. §§ 7412(a)(1), 7479(1); 40 

C.F.R. § 52.21(b)(1)(i)(b); 40 C.F.R. § 63.2. If it does so, the Petitioner’s claims relating to PTE 

calculations for CO, NOx and HCl would be irrelevant, as PTE could be determined based on 

those enforceable limits. See 40 C.F.R. § 52.21(b)(4); 40 C.F.R. § 63.2; Cash Creek Order at 15. 

Because these issues could be moot or substantively different depending on HDOH’s response to 

the issues upon which the EPA grants in this Order, it is an appropriate exercise of the EPA’s 

discretion and a reasonable use of agency resources to not resolve this claim, as explained above. 

As regards the Petitioner’s claim that the PTE calculations for VOC excluded emissions that 

should have been included in such calculations, as raised on page 16 of the Petition, the EPA 

notes that HDOH calculated VOC PTE at 39.2 tpy and thus determined that VOC was below the 

significance level defined in HAR §11-60.1-1 and that a BACT analysis was not required. Final 

Permit Review Summary at 5. To the extent that the Petitioner’s VOC PTE claim concerns 

applicability of a federal BACT requirement, the EPA notes that at the time Hu Honua’s Final 

23
 
 

 

 

 

 

 

Permit was issued any determination of whether Hu Honua was subject to a federal BACT 

requirement would have been made with reference to the significant emissions rate under 40 

C.F.R. § 52.21(b)(23). If, in response to the objection described above for Claim 2, HDOH takes 

steps to ensure that the Final Permit contains restrictions on CO and NOx PTE that are legally 

and practicably enforceable and that have the effect of restricting sourcewide CO and NOx PTE 

below 250 tpy, Hu Honua would not be a major source for PSD purposes, so analysis regarding 

the applicability of federal requirements based on VOC emissions for major sources would be 

unnecessary. Alternatively, to the extent that the Petitioner is claiming that a minor source limit 

was deficient or that a minor source requirement was not satisfied for VOC, that claim, as 

applicable, could be moot if HDOH responds to the objection on Claim 2 by permitting Hu 

Honua as a PSD source. Because this issue could be moot or substantively different depending 

on HDOH’s response to my objection in Claim 2, it is an appropriate exercise of the EPA’s 

discretion and a reasonable use of agency resources to not resolve this claim, as explained above. 

With respect to the Petitioner’s claim on pages 15-16 of the Petition that Section C.2 violates 

certain legal requirements because it fails to require compliance with the NOx, VOC, HCl, and 

CO emission limits on the boiler during boiler startup and shutdown, the EPA notes that it is not 

clear from the permit record what the legal basis is for the statement in Section C.2 that emission 

limits for NOx, VOC, HCl, and CO “shall be complied with at all times, except during boiler 

startup and shutdown.” Final Permit, Section C.2. For this reason, the EPA is not able to readily 

determine whether this provision is consistent or inconsistent with federal law27, the applicable 

requirements, and the requirements of title V for Hu Honua. Because the permit and permit 

record do not provide a rationale in the record for this exemption, including a description of the 

legal basis for it, there is not sufficient information for the EPA and the public to be able to 

evaluate the exemption in Section C.2 in light of the applicable requirements and the 

requirements of title V. Accordingly, I am granting on this aspect of this claim. Cf., e.g., Nucor I 

Order (granting a title V petition where the information in the permit record did not give the 

EPA and the public sufficient information to determine whether the requirements of the SIP and 

of title V were met). When HDOH revises the permit in responding to the objection on Claims 2 

and 4, if it decides to retain the emissions limits on the boiler currently in Section C.1 and the 

exemptions during periods of boiler startup and shutdown currently in Section C.2 for any 

pollutant, it must explain the basis and authority for any such exemption in the revised permit or 

permit record so that the EPA can evaluate whether it is consistent or inconsistent with federal 

law, in light of the applicable requirements and requirements of title V for Hu Honua. 

I.	 CLAIM 9: The Facility’s Biomass Handling, Chipping and Storage Operation 

Does Not Qualify as an “Insignificant Activity” 

Petitioner’s Claim. The Petitioner asserts that Hu Honua’s “biomass handling and chipping 

operations do not qualify as an ‘insignificant activity’ pursuant to H.A.R. § 11.60-82(f)(7), and 

associated emissions must therefore be included in [Hu Honua’s] PTE.” Petition at 16. The 

Petitioner states: “The Permit Review Summary fails to quantify emissions from [Hu Honua’s] 

27 See Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) (vacating startup and shutdown exemptions as violating 

the CAA's requirement that emissions standards or limitations must apply continuously). 

24
 
 

 

 

 

 

chipper operations, and, thus, fails to demonstrate that [Hu Honua’s] chipper operations would 

indeed satisfy the conditions of H.A.R. § 11.60-82(f)(7), specifically that emissions of particulate 

matter would not exceed the specified thresholds pursuant to Subsections (B) and (D).” Id. at 17. 

The Petitioner also contends “neither the Permit Review Summary nor the Draft Permit provide 

any information for [Hu Honua’s] electric biomass chipping operation beyond stating that the 

chipper would operate within an enclosed building with a dust collector.” Id. As a result, the 

Petitioner contends it is “impossible to estimate emissions from these activities.” Id. The 

Petitioner cites to a biomass facility in Florida with “approximately twice the capacity as Hu 

Honua” and notes that its estimated PM emissions are 15.7 tpy of PM and 7.4 tpy of PM10. Id. 

Based on this information, the Petitioner concludes that a low estimate of biomass handling and 

chipping emissions from Hu Honua would be 7.8 tpy of PM and 3.7 tpy of PM10, which would 

exceed the 2 tpy significance threshold for PM for insignificant activities pursuant to H.A.R. § 

11.60-82(f)(7)(D). Id. The Petitioner therefore asserts “the Revised Draft Permit is flawed for 

failing to include emissions from the [chipper operations] in [Hu Honua’s] PTE.” Id. at 18. 

EPA Response: I deny the Petitioner’s request for an objection to the Proposed Permit on this 

claim. 

The Petitioner has not demonstrated that HDOH’s treatment of the biomass handling, storage, 

and chipping operations (wood chipping operations) did not assure compliance with any 

applicable requirement under the CAA. The analysis in the Petition does not demonstrate that the 

wood chipping operations would not qualify as an “insignificant activity” under H.A.R. § 11­

60.1-82(f)(7). The Petitioner provides an alternative PTE for PM from the wood chipping 

operations, but does not adequately explain why this alternative PTE is appropriate for 

estimating emissions at Hu Honua. Petition at 17. To develop the alternative PTE, the Petitioner 

relies only on the boiler size of a Florida facility, Adage Hamilton, to estimate Hu Honua PM 

emissions of 7.8 tpy of PM and 3.7 tpy of PM10 from wood chipping operations. Id. However, 

boiler size alone is not adequate to determine PTE for this facility, and the Petitioner does not 

explain why the emission estimates from the Adage Hamilton facility are appropriate for 

determining emissions from Hu Honua, in light of other considerations, including Hu Honua’s 

wood’s moisture content, building enclosure, dust collection, or any aspect of Hu Honua’s 

physical and operational design. For these reasons, the Petitioner has not demonstrated that the 

emissions from Hu Honua’s wood chipping operations fail to qualify as an insignificant activity 

pursuant to H.A.R. § 11-60.1-82(f)(7). Even assuming Hu Honua must include the PM emissions 

from its wood chipping operations in its PTE calculation, the Petitioner has not discussed or 

analyzed how doing so would result in applicability of a requirement under the CAA that has not 

been addressed. Thus, the Petitioner has not demonstrated how HDOH’s failure to include these 

emissions in Hu Honua’s PTE in the Revised Draft Permit did not assure compliance with an 

applicable requirement under the CAA. 

Also, as we discuss in more detail in our response to Claim 13, some relevant parts of the record 

were available during the public comment period, including the Revised Permit Application and 

the Permit Review Summary for the Revised Draft Permit. (Revised Draft Permit Review 

Summary). Those documents included some of HDOH’s responses to the Petitioner’s comments 

on this issue. For example, the Revised Permit Application clearly explained that only about 25­

30 percent of the wood needed for the boiler is expected to be chipped onsite, that the wood 

25
 
 

 

 

 

 

 

 

 

would be chipped in an enclosed building with dust control, and that contracts would limit the 

moisture control of the wood, further limiting PM10 emissions. Revised Permit Application at 2­

3. The Revised Draft Permit Review Summary also explained that the wood chipper would be 

operated in an enclosed building with a dust collector, and that the wood to be received would 

not have a moisture content greater than 45 percent, “thereby further limiting PM10 emissions.” 

Revised Draft Permit Review Summary at 3. The Petitioner failed to address in the Petition the 

Revised Permit Application and HDOH’s reasoning in the Revised Draft Permit Review 

Summary concerning PM emissions from the wood chipping operations. MacClarence, 596 F.3d 

at 1123, 1130-33; Sierra Club v. Johnson, 541 F.3d at 1266-1267 ; Citizens Against Ruining the 

Environment, 535 F.3d at 677-78 ; Sierra Club v. EPA, 557 F.3d at406; In the Matter of Noranda 

Alumina, LLC, Order on Petition No. VI-2011-04 at 20 (December 14, 2012) (Noranda Order) 

(denying title V petition issue where petitioners did not respond to state’s explanation in 

response to comments or explain why the state erred or the permit was deficient); Kentucky 

Syngas Order at 41 (denying title V petition issue where petitioners did not acknowledge or 

reply to state's response to comments or provide a particularized rationale for why the state erred 

or the permit was deficient). 

Additionally, the record contains other information on PM emissions from the wood chipping 

operations. As HDOH explained in its Response to Comments on the Draft Permit (2010 RTC), 

wood chipping emissions were approximated using emission factors from a biomass facility in 

Gadsden County, Florida, which used an emission factor of 0.002 lb per ton of wood chipped. 

2010 RTC at 24, citing ADAGE Gadsden LLC Permit Application, Gadsden County, Florida, for 

a 55.5 MW Net Wood Biomass Electric Power Plant, January 2010. Using this emission factor, 

HDOH explained that it “conservatively assumed” that all wood would be chipped onsite, 

concluding that 0.5 tons per year of fugitive PM10 would be emitted. HDOH thus estimated 

emissions of regulated pollutants from the wood chipper would be less than 2 tpy. In support of 

this conclusion, HDOH explained that wood chipping and handling will occur in a completely 

enclosed building, with dust control and covered conveyers; dust generation will be further 

limited by the high moisture content of the wood, while the wood chipper itself will be powered 

by steam and electricity, eliminating combustion generated air pollutants. 2010 RTC at 24. Thus, 

any assertions regarding the record failing to provide information for PM emissions from the 

wood chipping operation are now moot. 

For the foregoing reasons, I deny the Petition as to this claim. 

J.	 CLAIM 10: The Permit Fails to Address Emissions from Trona or Lime and 

Ash Handling 

Petitioner’s Claim. The Petitioner asserts “the Permit Review Summary did not include 

emissions from trona or lime handling or from ash handling.” Petition at 18. The Petitioner 

further asserts that “emissions that can be easily captured and vented through a stack (i.e. nonfugitive emissions), e.g., particulate matter emissions from a storage silo captured via a vent 

filter, must be quantified and included in the Facility’s PTE.” Id. 

EPA’s Response. I deny the Petitioner’s request for an objection to the Proposed Permit on this 

claim. The Petitioner has not demonstrated that the Proposed Permit is not in compliance with 

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the Act. See 42 U.S.C. § 7661d(b)(2); MacClarence, 596 F.3d at 1131. The Petitioner does not 

identify any particular statutory or regulatory basis for its allegations. Id. at 1131 (“the 

Administrator’s requirement that [a title V petitioner] support his allegations with legal 

reasoning, evidence, and references is reasonable and persuasive”); In the Matter of Murphy Oil 

USA, Inc., Order on Petition No. VI-2011-02 at 12 (Sept. 21, 2011) (Murphy Oil Order) 

(denying a title V petition claim, where petitioners did not cite any specific applicable 

requirement that lacked required monitoring). Specifically, the Petitioner has not identified 

any specific statutory or regulatory requirements applicable to trona or lime handling or ash 

handling emissions or that would have been applicable if emissions from those activities had 

been included in any of the PTE calculations. The Petitioner also fails to analyze or address the 

key elements related to the issue. Pawnee Order at 7–10; Georgia Pacific Order at 10–11, 13– 

14. For example, even assuming trona or lime handling or ash handling emissions generate PM 

emissions, the Petitioner provides no estimate of PM emissions that were omitted from 

consideration. In particular, while the Petitioner refers to PM emissions from a storage silo 

captured by a vent filter, it does not attempt to quantify PM emissions from any storage silo or 

other storage facility at the facility or explain how consideration of such emissions would have 

affected the determination of the regulatory requirements that apply to Hu Honua. Even 

assuming that such PM emissions were required to be included in Hu Honua’s PTE, the 

Petitioner does not demonstrate how such an omission in the Permit Review Summary would 

mean that the Proposed Permit is not in compliance with an applicable requirement under the 

CAA. 

For the foregoing reasons, I deny the Petition as to this claim. 

K. CLAIM 11: [HDOH] Failed to Address Ammonia Slip and Sulfuric Acid Mist 

Emissions 

Petitioner’s Claim. The Petitioner alleges “neither the Application nor the Permit Review 

Summary or the Draft Permit mention the ammonia slip emissions that would be associated with 

the proposed Nalco ROTAMIX selective non-catalytic reduction system (SNCR) (or equivalent) 

or the sulfuric acid mist emissions associated with biomass firing.” Petition at 18. The Petitioner 

alleges these emissions “must be quantified, permit limits must be set, and enforceable permit 

conditions must be developed.” Id. 

EPA’s Response. I deny the Petitioner’s request for an objection to the Proposed Permit on this 

claim. 

Regarding the Petitioner’s claim that the “Application..., Permit Review Summary [and] the 

Draft Permit” do not address ammonia slip emissions, this issue is now moot as the Proposed and 

Final Permits do contain an ammonia slip limit for the urea injection system, as well as 

recordkeeping and performance testing requirements. See Proposed Permit and Final Permit, 

Section C.5 for ammonia slip emissions limit; Section E.11 for records of ammonia slip 

emissions; and Section G.2.i for ammonia slip performance testing. 

Regarding sulfuric acid mist emissions, the Petitioner has not identified any requirement under 

the CAA that HDOH failed to address in the Proposed Permit. The Petitioner’s general assertion 

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is not sufficient to demonstrate that the Proposed Permit is not in compliance with the Act. See 

MacClarence, 596 F.3d at 1131; also see Luminant Order at 9; BP Alaska Order at 8; Chevron 

Order at 12, 24.The Petitioner has merely stated that conditions for sulfuric acid mist emissions 

from biomass firing must be added to the Proposed Permit, without providing any technical and 

legal basis for this claim, such as information concerning the amount of sulfuric acid mist 

emissions, the regulatory program under which sulfuric acid mist emissions must be addressed, 

or how the regulatory requirement applies to Hu Honua. 

For the foregoing reasons, I deny the Petition as to this claim. 

L. CLAIM 12: HDOH Failed to Directly Regulate and Evaluate the Impacts of 

PM2.5 Emissions 

Petitioner’s Claim. The Petitioner asserts HDOH “must directly assess and regulate PM2.5 

emissions from [Hu Honua], even if it determines [Hu Honua] is not a major source of PM2.5 or 

any other pollutant.” Petition at 18-19, citing 45 C.S.R. §§13-2.20.b, 13.2-24.b, 13-8.3, 14-2.79, 

14.21.1.b; 70 Fed. Reg. 65984 (July 18, 1997); 70 Fed. Reg. 66043 (November 1, 2005); 73 Fed. 

Reg. 28321, 28344 (May 16, 2008). The Petitioner notes that PM2.5 has significant public health 

impacts. Petition at 19-20. The Petitioner asserts that the Revised Draft Permit does not “directly 

regulate or evaluate emissions of PM2.5 from [Hu Honua],” a criteria air pollutant, as required by 

the CAA. Petition at 21. The Petitioner asserts HDOH “failed to quantify the amount of PM2.5 

that would be emitted at the source,” and that the only mention of PM2.5 is in the Permit Review 

Summary, which proposes a BACT emission limit for PM2.5 of 0.025 lb/MMBtu. Id. The 

Petitioner states: “This purported ‘PM2.5 emission limit’ is rendered meaningless by the Draft 

Permit’s failure to specify those limits and require any PM2.5 monitoring.” Id. The Petitioner also 

asserts that there is “no analysis of whether the controls required for PM10 also minimize PM2.5,” 

and “as a result, it is unclear whether the purported PM2.5 emission limits are achievable, and 

they certainly are not enforceable.” Id. Finally, the Petitioner asserts it is “unacceptable as a 

matter of law and not technically justified” to use PM10 as a surrogate for PM2.5 because “PM2.5 

and PM10 are different pollutants that require different control measures.” Id. 

EPA Response: I deny the Petitioner’s request for an objection to the Proposed Permit on this 

claim. 

As a general matter, the Petitioner makes various statements about the health effects of PM2.5, 

which do not represent a “claim” to which the EPA is responding. Petition at 19-20. Further, the 

Petitioner makes several statements regarding the NSR PM2.5 Implementation Rule. Petition at 

18-19. The rule speaks for itself and those portions of the Petition also do not raise an “issue” 

regarding the permit to which the EPA is responding. 

The EPA has looked at a number of criteria in determining whether the petitioner has 

demonstrated noncompliance with the Act. One factor the EPA has examined is whether the 

petitioner has provided the relevant analyses and citations to support its claims. If the petitioner 

does not, the EPA is left to work out the basis for petitioner’s objection, contrary to Congress’ 

express allocation of the burden of demonstration to the petitioner in CAA § 505(b)(2). See 

MacClarence, 596 F.3d at 1131 (“the Administrator’s requirement that [a title V petitioner] 

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support his allegations with legal reasoning, evidence, and references is reasonable and 

persuasive”); Murphy Oil Order at 12 (denying a title V petition claim, where petitioners did not 

cite any specific applicable requirement that lacked required monitoring). Here, the Petitioner 

does not identify any applicable requirement that would mandate regulation of PM2.5 emissions 

from Hu Honua if it is not a major source. Nor does the Petitioner identify any applicable 

requirement of the CAA that would require a “BACT PM2.5 emission limit” or PM2.5 emissions 

analysis. To the extent the Petitioner is attempting to claim that Hu Honua is a major stationary 

source on the basis of PM2.5 emissions such that PSD requirements should apply, the Petitioner 

has not provided any data or information demonstrating that Hu Honua’s PM2.5 emissions exceed 

major source thresholds. See generally, Petition at 18-22. 

Additionally, to the extent that the Petitioner is attempting to claim that the PM10 monitoring is 

inadequate to demonstrate compliance with emission limits, the Petitioner has not identified an 

applicable requirement for which the monitoring is inadequate. Murphy Oil Order at 12. The 

EPA also notes that HDOH revised the Final Permit to incorporate PM performance test 

requirements, in response to the EPA comments. See HDOH Response to the EPA Letter at 10. 

Specifically, the Final Permit at Sections G.2.e and G.3.e require the use of Method 5 for 

filterable PM, Method 202 for condensible PM and Method 201A for filterable PM10. 

Finally, the Petitioner cites to the EPA’s final NSR PM2.5 Implementation Rule, in which the 

EPA stated that states are obligated to address direct PM2.5 and precursor emissions from both 

major and minor sources, but the Petitioner does not tie this rule to any applicable requirement or 

SIP requirement in place at the time the Final Permit was issued. Petition at 18-19. Therefore, 

any purported duty to revise Hawaii’s SIP to address PM2.5 for minor sources is outside of the 

EPA’s review in this Title V Petition. 

For the foregoing reasons, I deny the Petition as to this claim. 

M. CLAIM 13: [HDOH] Failed to Adequately Respond to Significant Public 

Comments 

Petitioner’s Claim. The Petitioner asserts that HDOH “had an obligation to adequately respond” 

to four “significant” comments that the Petitioner raised during the public comment periods and 

that are incorporated into the Petition as Claims 9-12. Petition at 22, citing In the Matter of 

Wisconsin Public Service Corporation’s JP Pulliam Power Plant, Order on Petition V-2009-01 

at 5 (June 28, 2010) (Pulliam Power Plant Order). The Petitioner states: “In her comments on 

the Revised Draft Permit, Dr. Pless identified four significant issues raised in her initial 

comments that [HDOH] failed to provide a direct response to.” Id. The four specific issues are as 

follows: (1) “failure to include emission limits and monitoring for biomass handling, chipping, 

and storage operation as a source of particulate matter emissions;” (2) failure to include emission 

limits and monitoring for trona or lime and ash handling as a source of particulate matter 

emissions;” (3) “failure to include emission limits and monitoring for sulfuric acid mist 

emissions;” and (4) “failure to include emission limits and monitoring for [PM2.5].” Id. The 

Petitioner contends that given HDOH’s “practice of iterative Permit revisions to address some 

public concerns,” the public has difficulty understanding “what comments are addressed in 

revisions and which are not.” Petition at 23. The Petitioner further contends that HDOH 

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“effectively wears out the opposition through their practice of serial, incremental [permit] 

revisions without a statement of basis or response to comments to explain the issues addressed, 

and those ignored, during the series of permit revisions that accompany [HDOH’s] review of 

controversial [permits].” Id. at 23. 

EPA’s Response. I deny the Petitioner’s request for an objection to the Proposed Permit on this 

claim. Each of the four issues raised in Claim 13 was also raised substantively as part of this 

Petition and are responded to in Claims 9 through 12 of this Order. 

In addition, the Petitioner appears to be asserting that HDOH’s failure to provide any response to 

these comments resulted in the Proposed Permit not being in compliance with the Act. However, 

the EPA notes that HDOH did provide a response to these four issues. See 2010 RTC at 21, 24, 

29, and 27, respectively, concerning HDOH’s responses on issues 1, 2, 3, and 4 in Claim 13. 

Thus, to the extent that the Petitioner contends that HDOH provided no response to the four 

comments, and this failure to respond is itself an inadequate response, the claim is moot, as 

HDOH did provide a response to all four comments in its 2010 RTC. 

The Petitioner also contends that HDOH has a practice of making “serial, incremental” revisions 

to covered source permits without providing a statement of basis or response to comments 

concerning the permit revisions. The EPA’s response to this point is focused on the Hu Honua 

title V permit. For Hu Honua, the following items were available as part of the record during the 

first public comment period on the Draft Permit, consistent with H.A.R. § 11-60.1 and 40 C.F.R. 

§ 70.7(h): (1) the Permit Application; (2) the Draft Permit Review Summary; and (3) the Draft 

Permit. Likewise, during the second public comment period on the Revised Draft Permit, in 

addition to the documents already noted, the following items were available to the public as part 

of the record, consistent with H.A.R. § 11-60.1 and 40 C.F.R. § 70.7(h): (1) the Revised Permit 

Application; the Revised Draft Permit Review Summary; (3) the Top-Down BACT Analysis for 

the Biomass Boiler; and (4) the Revised Draft Permit. The EPA notes that the Revised Draft 

Permit Review Summary, as well as the Revised Permit Application, also included updated 

information in response to the four specific comments raised during the first public comment 

period.28 Thus, while the processes may appear “iterative” – the permitting rules specifically 

provide for new public comment opportunities as appropriate. Thus, there is nothing inherently 

unlawful about this process. In this case, HDOH provided additional opportunities consistent 

with its authority under the applicable requirements. 

As a general matter, a “response to comment” (RTC) document is not included during the public 

comment period because comments have not yet been received. The Petitioner does not point to 

any Hawaii or EPA rule that requires permitting authorities to distribute a RTC when providing a 

second comment period. In this instance, the EPA appreciates the numerous opportunities for 

public comment provided by HDOH on the various iterations of Hu Honua’s title V permit. As 

28 See Revised Draft Permit Review Summary at 5 (PM10 emissions 33.6 tpy); Revised Permit Application at 3 

(concerning PM emissions from trona or lime handling and ash handling). Also, concerning sulfuric acid mist 

emissions, the Revised Draft Permit Review Summary explained that SO2 emissions from the biomass-fired boiler 

were based on a sulfur content of 15 ppm in the fuel for S15 biodiesel and 100% conversion of sulfur to SO2. 

Revised Draft Permit Review Summary at 7. The Revised Permit Application also explained how SO2 emissions 

were calculated. Revised Permit Application at 9. 

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HDOH stated in its 2011 RTC, the public participation opportunities provided were consistent 

with their own administrative rules and 40 C.F.R. Part 70. 2011 RTC at 37. HDOH also 

explained that it conducted a public hearing and extended the first comment period to 60 days, 

beyond the required 30 days, to accommodate community concerns. HDOH further explained 

that it limited the second public comment period to changes in the Revised Draft Permit, since 

the public already had sufficient time – 60 days versus the minimum 30 days – to provide 

comments on other matters during the first comment period on the Draft Permit. HDOH also 

noted that the second comment period extended beyond the required 30 days to 32 days for 

public participation. 2011 RTC at 37. 

The EPA notes that we posted the Proposed Permit on our website on May 19, 2011, and that we 

posted the EPA Letter on our website on July 5, 2011. The Petitioner references the EPA Letter 

in the Petition. The EPA also notes that the 60-day petition period commenced on July 5, 2011, 

and ended on September 6, 2011.29 

The EPA realizes that completing the title V permitting process generally requires substantial 

state agency staff efforts. The EPA also notes that HDOH made substantive changes to the Draft, 

Revised Draft, Proposed, and Final Permits, each of which were intended, by HDOH, to be 

responsive to public comments on prior versions of the permit. Even the Petitioner 

acknowledged that the iterative versions of the permit were to address public concerns. Petition 

at 23. As a matter of “best practice,” the EPA recommends that, when appropriate and possible 

from a state or local agency resources standpoint, state or local agencies provide their responses 

to comments at the time that they provide notice of opportunity to comment on a revised draft 

permit. Additionally, the EPA recommends that permitting authorities carefully consider when it 

is appropriate to provide the public with another opportunity to comment on a revised draft 

permit. This practice assures that the public has an opportunity to meaningfully participate in the 

permitting process, including the opportunity to comment on each permit revision. 

Furthermore, the EPA notes that providing the entire record for a Proposed Permit at the 

beginning of the EPA’s 45-day review 30period serves to enhance the EPA’s review of the 

Proposed Permit by providing a fuller understanding of the permitting history and the state’s 

rationale for its permitting decisions. Where the entire record is available at the beginning of the 

45-day review period, the EPA has the benefit of understanding the permitting history and the 

state’s rationale for its permitting decisions. Likewise, where the entire record is available at the 

beginning of the public’s 60-day window to submit petitions to the Administrator, the public has 

the benefit of understanding the permitting history and the state’s rationale for its permitting 

decisions. Providing the entire record before the start of the public’s 60-day petition period 

would allow the public to better assess any issues with the permit that they may have identified. 

Where a state agency provides a record containing an adequately articulated rationale for its 

29 While the EPA is not relying upon these facts as the basis for its decision, the EPA notes that the Proposed and 

Final Permits, as well as the RTCs on the Draft, Revised Draft, and Proposed Permits were made available to the 

public on August 31, 2011, 6 days before the end of the 60-day petition period. The Petitioner submitted its Petition 

on August 26, 2011, 11 days before the end of the 60-day petition period. 

30 The EPA notes that the EPA’s 45-day review period begins when the permitting authority has provided the EPA 

with “the proposed permit and all necessary supporting information.” See 40 C.F.R § 70.8(c). 

31