OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

59) ll-K-16 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 59 of 142 

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BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 

In the Matter of: 

Mecklenburg Cogeneration 

Limited Partnership 

Clarksville, VA 

Applicant 

<5 re 

PSD Appeal No .-. 90~7 

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ORDER DENYING REVIEW 

In a petition dated June 15, 1990, the Southside Concerned 

Citizens, Inc. of Halifax, Virginia requested review of a 

Prevention of Significant Deterioration (PSD) permit issued to 

Mecklenburg Cogeneration Limited Partnership, Inc. for the 

construction of a 240 megawatt cogeneration plant in Mecklenburg 

County, Virginia. The facility will comprise four pulverized 

coal-fired boilers capable of generating electricity for Virginia 

Power, an electric utility company, and steam for Burlington 

Industries, a textile manufacturer. The permit determination was 

made by the Department of Air Pollution Control (DAPC) of the 

State of Virginia on May 18, 1990, pursuant to a delegation of 

authority from the U.S. Environmental Protection Agency, Region 

III, Philadelphia, Pennsylvania. Because of the delegation, 

DAPC's authority to issue PSD permits is subject to the review 

provisions of the applicable EPA regulations, 40 CFR §124.19 

(1989), and any permit it issues will be an EPA-issued permit for 
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purposes of federal law. 40 CFR §124.41; 45 Fed. Reg. 33413 (May 

19, 1980). 

Under the rules governing this proceeding, there is no 

appeal as of right from the permit decision. Ordinarily, a 

petition for review of a PSD permit determination is not granted 

unless it is based on a clearly erroneous finding of fact or 

conclusion of law, or involves an important matter of policy or 

exercise of discretion that warrants review. The preamble to the 

regulations states that "this power of review should be only 

sparingly exercised," and that "most permit conditions should be 

finally determined at the Regional level * * *." 45 Fed. Reg. 

33,412 (May 19, 1980). The burden of demonstrating that the 

permit conditions should be reviewed is therefore on the 

petitioner. Petitioner has not satisfied that burden in this instance. 

Petitioner objects to the emissions limitations in the 

permit for the pollutants N0X and S02, contending that the 

limitations do not reflect application of "best available control 

technology" (BACT) for emissions control. According to 

petitioner the BACT analysis, although purporting to follow this 

Agency's "top-down" policy,1 nevertheless did not provide 

if 

1 See Pennsauken County Resource Recovery Facility, PSD 

Appeal No. 88-8, p.5 (Nov. 10, 1988) (under the "top-down" 

method, the most stringent control technology is evaluated first, 

and is presumed to be BACT unless the permit applicant 

demonstrates that there are technical or other collateral impacts 

which make it infeasible, unreasonable or otherwise not 

"achievable" for that facility, in which case the next most 

stringent control alternative, is evaluated as BACT, and so 

forth). 
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adequate documentation for rejecting (i) selective catalytic 

reduction (SCR) for control of NO, emissions and (ii) magnesium 

oxide promoted wet scrubbing for control of S02 emissions. 

Application of these technologies, according to petitioner, would 

have resulted in more stringent emission limitations being set 

for these pollutants. Application of the latter would also mean 

the facility would have less of an impact on the National Ambient 

Air Quality Standard (NAAQS) for S02 in the surrounding 

geographical area.2 

These objections do not persuade me to review the permit. 

It is undisputed that DAPC analyzed the permit application by 

employing EPA's top-down policy. That policy calls for the 

applicant to identify the most stringent technology for 

controlling emissions of particular pollutants such as NO, and 

S02. If the applicant does not intend to use that technology, it 

must point to appropriate statutory considerations for rejecting 

2 After the time for filing an appeal had expired, 

petitioner submitted additional materials, prepared by the 

National Park Service, regarding.alleged adverse impacts on air 

quality related values in the Shenandoah National Park, which the 

Park Service believes would result from the operation of any of 

approximately 15 coal-fired facilities currently proposed for 

construction in Virginia. The Mecklenburg facility is one of the 

15 facilities. Neither the Park Service nor the petitioner 

raised this issue when the case was pending before DAPC; 

moreover, the Park Service's determination of adverse impact is 

preliminary, not final. I conclude, therefore, that the issue is 

not appropriate for consideration on appeal: it was not raised 

in a proper and timely manner, and petitioner has not otherwise 

shown cause for considering the issue out of time. See 4 0 CFR 

§124.13 (all reasonably ascertainable issues must be raised first 

with the permit issuer); 40 CFR §124.19(a) (appeals must be 

accompanied by a statement of reasons and filed within 30 days 

after issuance of the permit issuer's decision). 
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it, such as overriding economic, environmental, or energy 

concerns. A fair reading of the record demonstrates that all of 

these steps were in fact followed in this particular instance. 

Simply because the permit issuer may not have identified, 

documented, or consulted every single potential source of 

information about the technologies in question does not mean, as 

petitioner implies, that the resulting permit determination is 

defective, or that the rejection of the two technologies in 

question was not adequately justified.3 It is enough if the 

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3 In commenting on the appeal, EPA Region III suggested 

that the permit determination should be remanded to DAPC for 

supplementation of the administrative record, citing instances 

where the record failed to reveal whether DAPC considered 

information and sources pertinent to the BACT analysis. 

Memorandum from Thomas J. Maslany, Director, Air, Toxics and 

Radiation Management Division, Region III, to Ronald L. McCallum, 

Chief Judicial Officer, Office of the Administrator (September 

28, 1990). These citations by themselves, however, do not 

warrant the conclusion that the permit determination requires 

supplementation. At most they merely demonstrate that certain 

sources were not consulted or, if they were, were not adequately 

documented by DAPC. For a remand, there must be a compelling 

reason to believe that the omissions led to an erroneous permit 

determination—in other words, that they materially affected the 

quality of the permit determination. Here, however, the record 

discloses that DAPC considered all the relevant aspects of the 

"top" NO, and S02 control technologies. Rejection of these 

technologies was not an impetuous act; it was done after careful 

deliberation and consideration of credible sources. 

It is worth noting that neither technology has ever been 

employed domestically with a facility and fuel source the same as 

the applicant's. Compare Pennsauken County Resource Recovery 

Facility, PSD Appeal No. 88-8 (Nov. 10, 1988), pp. 8-9 (permit 

determination remanded where rejected technology was in use 

domestically in the same type of facility but the BACT 

determination lacked the "detail and analysis" necessary to show 

that the rejected technology was technically or economically 

unachievable). Although a permit issuer must consider available 

technologies from other types of facilities if the technologies 

are transferrable, see Spokane Regional Waste to Energy Facility, 

(continued...) 
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record as a whole reflects a reasoned analysis of current 

information about potentially available technologies. 

DAPC clearly gave appropriate scrutiny to the technologies 

in question and explained its reasons for rejecting them as BACT 

for this project. See, e.g.f Virginia Air Pollution Control 

Board, Agenda Item No. 4 (May 3, 1990) (Document No. 21 and 

accompanying audio tape); DAPC Response to Petition for Review 

(August 1, 1990). DAPC concluded that the emission controls 

proposed as best available control technology (BACT) for the 

facility (dry injection of hydrated lime—so-called "spray 

drying"—using an average annual coal sulfur content of 1.0 

percent (maximum of 1.3 percent at any single time) for control 

of S02 emissions (rated at 92 percent S02 removal); and advanced 

overfire air for control of NO, emissions at levels comparable to 

those achieved with thermal de-NO, in related applications) would 

3(...continued) 

PSD Appeal No. 88-12 (June 9, 1989), p. 18, n. 24 (" [technology 

transfer from one source category to another is appropriate for 

BACT purposes"), a permit issuer does not commit clear error if 

it carefully considers the potentially transferrable technologies 

in the context of a particular project, as was done here, but its 

level of consideration or documentation nonetheless falls short 

of matching the level that would be expected, for example, if the 

permit issuer were rejecting a top technology with a proven track 

record in the same source category. A rule of reason 

proportionate to the technology's track record necessarily 

governs how much detail and documentation must go into 

consideration of a particular technology. Thus, although loose 

documentation always carries with it the potential for delaying 

implementation of an otherwise sound permit determination (or 

possibly even resulting in its reversal), I am not persuaded that 

DAPC's consideration of the top technologies in the context of 

the site specific considerations relevant to the BACT 

determination for this project would be measurably enhanced by 

further supplementation of the record. 
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be among the most effective for reducing emissions, after giving 

effect to legitimate cost and feasibility considerations 

applicable to this facility at this site. The purpose of the 

top-down policy is to ensure that a given BACT determination 

complies with statutory requirements. EPA has interpreted the 

BACT definition as containing two core criteria: consideration 

of the most stringent control technologies available, and a 

reasoned justification of any decision to require less than the 

"maximum degree of reduction" in emissions, after considering 

"energy, environmental and economic impacts and other costs." 

See Guidelines for Determining Best Available Control Technology 

(OAQPS, Dec. 1978), pp. 5-6. DAPC complied with these 

requirements. 

For the reasons stated above, it is my conclusion that 

review of DAPC's permit determination is not warranted. It meets 

all necessary requirements of federal law. Therefore, the 

petition for review is denied. In accordance with 40 CFR 

124.19(f)(2), the Regional Administrator of EPA Region III or his 

delegatee shall publish notice of this final action in the 

Federal Register. 

So ordered. 

Dated: DEC 2 1 1990 jl^L&L^^KJ 

William K 

Administrate) 
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CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing Order Denying 

Review, in the matter of Mecklenburg Cogeneration Limited 

Partnership, PSD Appeal No. 90-7, were sent to the following 

persons in the manner indicated: 

By 1st class mail, Thomas J. Maslany, Director 

postage prepaid: Air, Toxics & Radiation 

Management Division 

U. S. EPA, Region III 

841 Chestnut Building 

Philadelphia, PA 19107 

Wallace Davis 

Commonwealth of Virginia 

Virginia Department of Air 

Pollution Control 

9th Street Office BIdg., Room 801 

P. O. Box 10089 

Richmond, VA 23240 

Victor Shellhorse, President 

Mecklenburg Cogenco, Inc. 

A General Partnership 

Mecklenburg Cogeneration Ltd. 

Wachovia Center 1812 

400 South Tryon Street 

Charlotte, NC 28202 

John G. Aldworth 

Southside Concerned Citizens 

P. 0. Box 784 

Halifax, VA 24558 

Elizabeth H. Haskell 

Secretary of Natural Resources 

Commonwealth of Virginia 

9th Street Office Building 

Richmond, VA 23219 

Dated: DEC 2 7 1990 Brenda H. Selden 

Legal Staff Assistant