BEFORE THE ENVIRONMENTAL APPEALS BOARD

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

__________________________________

 )

In re: )

 )

Chehalis Generating Facility, ) PSD Appeal No. 01-06

 ) 

 ) 

Permit No. EFSEC/95-02 )

__________________________________)

ORDER DENYING REVIEW

I. INTRODUCTION

On April 13 and 17, 2001, respectively, the United States

Environmental Protection Agency, Region X (“Region”) and the

State of Washington’s Energy Facility Site Evaluation Council

(“EFSEC”) jointly issued the “Amendment 1 Notice of Construction

and Prevention of Significant Deterioration Final Approval”

(“Amended PSD Permit”), to Chehalis Power Generating, Limited

Partnership (“Chehalis Power”). The Amended PSD Permit

authorizes the construction and operation of a 520-Megawatt

(“MW”) power facility consisting of two combined-cycle combustion

turbines to be located near Chehalis, Washington. Amended PSD

Permit, ¶ 1 (Makarow Declaration in Support of EFSEC’s Motion for

Summary Dismissal (“Makarow Decl.”) Exhibit (“Ex.”) 37). EFSEC
1

Under the delegation agreement with the Region, the State

has primary responsibility for implementing the federal PSD

program. Since the State acts as EPA’s delegate, the permit is

considered an EPA-issued permit and is subject to review by this

Board. In re Three Mountain Power, LLC, PSD Appeal No.01-05,

slip op. 3 n.1 (EAB, May 30, 2001), 10 E.A.D. ___; In re W.

Suburban Recycling & Energy Ctr., L.P., 6 E.A.D. 692, 695 n.4

(EAB 1996) (“For purposes of part 124, a delegated State stands

in the shoes of the Regional Administrator [and must] follow the

procedural requirements of part 124. * * * A permit issued by a

delegate is still an ‘EPA-issued permit’; * * *.”) (quoting 45

Fed. Reg. 33,413 (May 19, 1980). However, under the delegation

agreement, the Region has retained authority over the nitrogen

dioxide (“NO2") increment. Thus, when PSD permits are issued for

major sources of nitrogen oxides (NOx), EFSEC and the Region

issue PSD permits jointly. Delegation Agreement, EFSEC Record

Ex. 44. 

2

and the Region share responsibility for implementing the federal

PSD regulations in the State of Washington pursuant to a

delegation agreement.1

 Since permits jointly issued by EFSEC and

the Region are considered EPA-issued permits, appeals of the

permit decisions are heard by the Environmental Appeals Board

(“Board” or “EAB”) under 40 C.F.R. § 124.19. In this case,

Rebound has timely filed a petition for review of the Amended PSD

Permit decision for Chehalis Power. Rebound’s Petition Under 40

CFR 124.19 F (sic) for Review of the Chehalis Power Prevention of

Significant Deterioration Approval (May 15, 2001) (“Petition”).
2

NAAQS are maximum ambient air concentrations for six

pollutants: sulfur dioxide (“SO2"), particulate matter (“PM”),

carbon monoxide (“CO”), ozone (measured as volatile organic

compounds) (“VOCs”), nitrogen dioxide (“NO2"), and lead. 40

C.F.R. §§ 50.4-.12. 

3

In this Order, we will begin with a discussion of the legal

and factual background of this matter (part II) and then address

the issues raised by Rebound in its Petition (part III). 

II. BACKGROUND

A. Statutory and Regulatory Background

Congress established the PSD provisions of the Clean Air Act

(“CAA” or “Act”) to manage economic growth in a “manner

consistent with the preservation of existing clean air

resources.” CAA § 160(3), 42 U.S.C. § 7470(3). The PSD

provisions of the CAA are implemented through a pre-construction

permit process. Specifically, pre-construction permits are

required for new and modified major stationary sources, in areas

of the country designated to be in “attainment” or

“unclassifiable” with respect to federal air quality standards

called “national ambient air quality standards” (“NAAQS”).2

 See
4

CAA §§ 107, 160-169B, 42 U.S.C. §§ 7407, 7470-7492; 40 C.F.R.

§ 52.21. 

Both the Act and the applicable PSD regulations require that

several important analyses be performed before setting PSD permit

conditions. Of particular importance in this matter, the PSD

regulations require a new source or modified major source to

employ the “best available control technology” or “BACT” to

control emissions of those pollutants that it has the potential

to emit in amounts greater than applicable “significant” levels

established by the PSD regulations at section 52.21(b)(23). CAA

§ 165(a)(4), 42 U.S.C. § 7475(a)(4); 40 C.F.R. § 52.21(j)(2). 

The regulations define BACT as follows:

Best available control technology means an emissions

limitation * * * based on the maximum degree of

reduction for each pollutant subject to regulation

under Act which would be emitted from any proposed

major stationary source or major modification which the

Administrator, on a case-by-case basis, taking into

account energy, environmental, and economic impacts and

other costs, determines is achievable for such source 
5

or modification through application of production

processes or available methods, systems, and techniques

* * * for control of such pollutant. 

40 C.F.R. § 52.21(b)(12). 

Under the PSD regulations, once a final PSD permit has been

issued, the permittee must begin construction within 18 months of

receiving approval to construct and must complete construction

within a reasonable time. See 40 C.F.R. § 52.21(r)(2). The PSD

regulations allow the Administrator to extend this 18-month time

period if justified. Id. If the permittee does not commence

construction within the 18-month time period or within the time

period allowed by an extension, the permit becomes invalid. Id. 

In order to “commence construction” under the Act the

following must have occurred:

[T]he owner or operator has obtained all necessary

preconstruction approvals or permits required by

Federal, State, or local air pollution emissions and
3

The PSD permitting process is just one of the permitting

and approval requirements involved in a major industrial

development project in the State of Washington. The State of

Washington’s review process requires a Site Certification

Agreement (“SCA”), which is governed by State law and contains

all terms and conditions required to construct and operate a

facility. Chehalis Power’s Initial Response and Motion for

Summary Disposition at 3 (citing Wash. Rev. Code § 80.50.040(8),

(12); Wash. Admin. Code § 463-39-095; Wash. Rev. Code 

(continued...)

6

air quality laws or regulations and either has (i)

begun, or caused to begin, a continuous program of

physical on-site construction of the facility or (ii)

entered into binding agreements or contractual

obligations, which cannot be canceled or modified

without substantial loss to the owner or operator, to

undertake a program of construction of the facility to

be completed within a reasonable time. 

CAA § 169(2)(A), 42 U.S.C. § 7479(2)(A). 

B. Factual and Procedural Background

This matter has a long and complicated history. The

original PSD application for the Chehalis Generating Facility was

submitted in 1994.3

 Chehalis Power’s application proposed to
3(...continued)

§ 80.50.110(2) and 120). The SCA may contain provisions

resulting from State law as well as federal PSD regulations. Id.

The PSD permit becomes an exhibit to the SCA. Id. 

4The proposed facility is subject to the PSD permitting

process because it constitutes a “major stationary source” under

the PSD regulatory definition. See 40 C.F.R.

§ 52.21(b)(1)(i)(a). There is no dispute that this is a major

source subject to the PSD permitting regulations. 

5Although Rebound did comment on the Initial PSD Permit, it

did not appeal the Initial Permit in 1997. 

7

construct and operate an electrical power generating facility

designed to be constructed in two phases, each phase consisting

of a 230-MW combined cycle unit.4

 Fact Sheet for Prevention of

Significant Deterioration Chehalis Generation Facility Project

Chehalis, Washington at 1 (June 6, 1996) (EFSEC Record Ex. 3) 

(“1996 Fact Sheet”).

After public notice and comment, EFSEC and the Region issued

the Initial PSD Permit for the Facility on June 18, 1997, and

March 7, 1997, respectively.5 The Initial PSD Permit identified

BACT for nitrogen oxides (“NOx”) to be advanced dry low NOx

burners (“ADLN”) with an emissions limit for NOx of 9.9 parts per

million on a volumetric basis (“ppmv”). Initial PSD Permit at 4

(Makarow Decl. Ex. 1); 1996 Fact Sheet at 2. 
6Chehalis Power’s application for an 18-month extension of

the Initial PSD Permit contained a reevaluation of BACT. In

conducting its reevaluation of BACT, Chehalis Power reviewed

EPA’s RACT/BACT/LEAR Clearinghouse database and “made follow-up

contacts to several sites and permitting agencies to update the

original permit application’s BACT determination.” Fact Sheet

for the Proposed 18-Month Extension at 1-2 (Sept. 8, 1998)

(Makarow Decl. Ex. 7). After EFSEC reviewed the updated

information that Chehalis Power submitted, EFSEC determined that

the information did not justify changing any of the BACT

requirements for the turbines. Id. at 2. 

7

Rebound did not comment on the PSD Permit Extension, nor

did Rebound appeal the PSD Permit Extension. Makarow Decl.

¶¶ 11-12. 

8

Subsequent to the issuance of the Initial PSD Permit in

1997, Chehalis Power requested an 18-month extension of the

Initial Permit pursuant to 40 C.F.R. § 52.21(r)(2). Along with

its request for a permit extension, Chehalis Power submitted a

review of BACT.6 Makarow Decl. ¶ 7. On November 9, 1998, and

November 16, 1998, respectively, after notice and comment, EFSEC

and the Region approved the “Extension 1 Final Approval of the

Notice of Construction and Prevention of Significant

Deterioration Approval 18 Month Extension” (“PSD Permit

Extension”), granting Chehalis Power’s 18-month extension

request. The PSD Permit Extension authorized Chehalis Power to

commence construction for the project by no later than June 18,

2000.7 PSD Permit Extension (Makarow Decl., Ex. 9). Under the 
9

PSD Permit Extension, BACT for NOx continued to require the use

of ADLN for NOx, but identified as an alternative the use of

standard dry low NOx burners with selective catalytic reduction

(“SCR”). Id. at 2, ¶ 8. The emission limit for NOx remained 9.9

ppmv. Id. at 4, ¶ 2. 

In the latter part of 1999, Chehalis Power requested a

determination from EFSEC that Chehalis Power had commenced

construction under the PSD Permit Extension. After a series of

meetings of the EFSEC discussing the commencement of construction

issue, EFSEC determined that Chehalis Power had, in fact,

commenced construction under its PSD Permit Extension. EFSEC

Regular Meeting Minutes (Dec. 13, 1999) (Makarow Decl. Ex. 13);

see also EFSEC Regular Meeting Minutes (Nov. 8, 1999) (Makarow

Decl. Ex. 11). EFSEC based its commencement of construction

determination on, inter alia, Chehalis Power’s contract with

General Electric to purchase advance dry low NOx turbines

specified in the PSD Permit Extension. EFSEC Responsiveness

Summary at 6, Comment 2 (April 13, 2001) (Makarow Decl. Ex. 27)

(“Responsiveness Summary”). 
10

In a letter dated January 10, 2000, Chehalis Power requested

that the PSD Permit Extension be amended to “reflect proposed

changes in the facility design and operation.” Letter to D.

Ross, EFSEC Chair, from P. Margaritis, Vice President, Chehalis

Power (Jan. 10, 2000) (Makarow Decl. Ex. 16). 

On May 18, 2000, EFSEC published a notice informing the

public of the proposed permit amendment for the Chehalis

Generating Facility. Under the proposed permit amendment, BACT

for NOx remained 9.9 ppmv and ADLN technology continued to be 

identified as the control technology. The proposed Amended PSD

Permit eliminated SCR as an alternative technology. The public

comment period on the proposed Amended PSD Permit was open for 49

days, ending on July 5, 2000, during which time a public hearing

was held on June 19, 2000. EFSEC received 16 written comments

and 9 oral comments on the proposed amended permit. 

Responsiveness Summary at 3. Rebound was among the commenters. 

Id. at 6, 12, 13-14, 17-18, 21-22. During the public comment

period, Chehalis Power signed a settlement agreement with

Washington State’s Department of Ecology which required the

addition of NOx emission limits during startup and shutdown to

the proposed Amended PSD Permit. Settlement Agreement Among 
8

Although not explicit in the Administrative Order on

Consent (“AOC”), the Region presumably entered into the AOC

because it disagreed with the prior commencement of construction

determination by EFSEC and disagreed with the proposed Amended

PSD Permit’s BACT determination for NOx. See AOC at 2, 4, 6

(March 22, 2001) (EFSEC Record Ex. 38).

11

Washington Department of Ecology, Washington Department of Fish

and Wildlife and Chehalis Power (May 24, 2000) (Makarow Decl. Ex.

26) (“Settlement Agreement”).

In January of 2001, the Governor of Washington issued a

proclamation stating that vital public services, including

affordable electrical power, were at risk and declaring an energy

supply alert throughout the State. Governor’s Proclamation

(Jan. 26, 2001), Region’s Administrative Record (“Admin. Record”)

Ex. 92. 

Subsequent to this proclamation, Chehalis Power and the

Region entered into settlement discussions.8

 On March 19 and 22,

respectively, Chehalis Power and the Region signed an

Administrative Order on Consent (“AOC”) that required Chehalis

Power to request an additional revision of the proposed Amended

PSD Permit, requiring the installation of SCR to control NOx

emissions. AOC. Additionally, the AOC required a downward 
9

Rebound has also filed suit in the Superior Court for the

State of Washington seeking review of the commencement of

construction determination, BACT and other issues under the

Washington Administrative Procedures Act. Chehalis Power’s

Initial Response and Motion for Summary Disposition at 5 n.3, 9. 

12

revision of the NOx emission limit to 3.0 parts per million

volume dry (ppmdv) for the turbines when firing natural gas and

14 ppmdv when firing oil; and a 10 ppm limit for ammonia. Id. at

6. 

The Region and EFSEC approved the Amended PSD Permit on

April 13 and April 17, 2001, respectively. On April 13, 2001,

EFSEC issued its Responsiveness Summary responding to the

comments it received during the comment period. Responsiveness

Summary. The approved Amended PSD Permit included the revisions

set forth in the AOC, as well as the startup and shutdown limits

negotiated with Washington’s Department of Ecology. Amended PSD

Permit. It is this Amended PSD Permit that Rebound asks the

Board to review.9 

Petitioner Rebound has raised several issues challenging the

Permit and permitting process. In its Petition, Rebound asserts

that: (1) a revised BACT analysis is required for limits on NOx
13

emissions, carbon monoxide (“CO”) emissions, volatile organic

compounds (“VOC”) emissions, particulate matter (“PM”) emissions,

and startup and shutdown NOx emissions; (2) public comment is

required for the limits on startup and shutdown NOx emissions and

for the limits on ammonia emissions; and (3) the Permit is

missing language regarding appeal rights and joint authority with

U.S. EPA which is mandatory under the delegation agreement. 

Petition at 5-6. 

As the Board does in all of its permit appeal matters, it 

requested that both EFSEC and the Region, the permitting

authorities, respond to the Petition. The Board also granted

Chehalis Power’s request to participate in the proceedings. 

Order Granting Motion to Intervene and Extension of Time to File

Responses (May 30, 2001). The Board has received a motion for

summary disposition of this matter from Chehalis Power and EFSEC,

as well as a brief from the Region concurring with Chehalis

Power’s request for summary disposition. At the Board’s request,

the United States Environmental Protection Agency’s, Office of

General Counsel (“OGC”) filed an amicus brief on one issue raised

in the Petition. The Board has also provided the parties an 
14

opportunity to file responses to the filings submitted in this

matter. 

III. DISCUSSION

A. Standard of Review

Under the rules governing this proceeding, the Board will

consider issues raised in petitions for review that involve the

PSD program and that meet the procedural requirements identified

in 40 C.F.R. § 124.19. However, the Board will not review

“issues that are not explicit requirements of the PSD provisions

of the Clean Air Act or EPA’s implementing regulations and have

not been otherwise linked to the federal PSD program in the

context of this case.” In re Knauf Fiber Glass, GmbH, PSD Appeal

Nos. 98-3 through 98-20, slip op. at 54 (EAB, Feb. 4, 1999), 8

E.A.D. __; see In re Zion Energy, L.L.C., PSD Appeal No. 01-01,

slip op. at 8 (EAB, March 27, 2001), 9 E.A.D. ___; In re Carlton,

Inc., PSD Appeal No. 00-9, slip op. at 5 (EAB, Feb. 28, 2001), 9

E.A.D. __. 
15

Further, the Board will deny review of a PSD permit 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. 40 C.F.R. §124.19(a); In re

Three Mountain Power, LLC, PSD Appeal No.01-05, slip op. at 12

(EAB, May 30, 2001), 10 E.A.D. __. The petitioner has the burden

of demonstrating that review is warranted by stating his/her

objections to the permit and explaining why the permit issuer’s

prior response to those objections is clearly erroneous, an abuse

of discretion, or otherwise warrants review. In re Steel

Dynamics Inc., PSD Appeal Nos. 99-4 & 99-5, slip op. at 13-14

(June 22, 2000), 9 E.A.D. __ (citing In re Hawaii Elec. Light

Co., PSD Appeal Nos. 97-15 through 23, slip op. at 8 (EAB, Nov.

25, 1998), 8 E.A.D. __); In re Kawaihae Cogeneration Project, 7

E.A.D. 107, 114 (EAB 1997); In re EcoEléctrica, L.P., 7 E.A.D.

56, 60-61 (EAB 1997)). As we have noted on many occasions, the

preamble to section 124.19 cautions that “the power of review

should be only sparingly exercised” and “most permit conditions

should be finally determined at the [permitting authority]

level.” 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); accord Steel 
10We read the portion of the Petition which argues that

EFSEC should have included two additional technologies, SCONOx

and XONON, in its “most recent BACT analysis” as relating to the

argument that a new BACT analysis was required. See Petition at

5-6. To the extent the Petition can be read as asserting that

EFSEC committed clear error by not including a discussion of

SCONOx and XONON in its prior BACT analysis, in conjunction with

the PSD Permit Extension, that appeal would be untimely. 

16

Dynamics, slip op. at 13 (EAB, June 22, 2000); Knauf Fiber Glass,

slip op. at 9 (EAB, Feb. 4, 1999).

B. BACT Analysis

Rebound argues that EFSEC committed clear error by issuing

the Amended PSD Permit without revising the BACT analysis for

several of the criteria pollutants, and that this error warrants

review by the Board. Specifically, Rebound asserts that a

revised BACT analysis is required for NOx,10 CO, VOC and PM, as

well as for the limits on startup and shutdown of NOx emissions. 

Rebound makes two alternative arguments supporting its

position that a revised BACT analysis is required. First,

Rebound argues that the 18-month PSD Permit Extension, on which

the Amended PSD Permit is based, is no longer valid because 
17

Chehalis did not commence construction by June 18, 2000, the end

date of the PSD Permit Extension. Thus, argues Rebound, Chehalis

Power is without a valid PSD permit and must reapply for a new

permit, which, in turn, would require a new BACT analysis. 

Petition at 14. 

In Rebound’s second argument, it insists that whenever a PSD

permit is amended at the request of the permit applicant, the

amendment triggers the requirement for a comprehensive new BACT

review. Petition at 16 (citing Order on Motion to Stay, In re

Columbia Gulf Transmission Co., PSD Appeal No. 88-11 (Adm’r, July

3, 1990)). 

1. Commencement of Construction

Rebound’s first argument for requiring a revised BACT

analysis is that Chehalis Power had failed to commence

construction under its PSD Permit Extension before the Permit

expired, leaving Chehalis Power without a PSD permit in this

matter. Petition at 12-14. Rebound argues that EFSEC committed 
11We reject Chehalis Power’s argument that the Board is

without jurisdiction to review the commence construction

determination in this matter. Chehalis Power’s Initial Response

and Motion for Summary Disposition at 15. The Board clearly has

jurisdiction under 40 C.F.R. § 124.19 to review permits issued

under 40 C.F.R. § 52.21. The Amended PSD Permit is such a

permit. To the extent the Amended PSD Permit is predicated on

the earlier commencement of construction determination such that

the commencement of construction determination affects the

validity and terms of the Amended PSD Permit, as it does here, we

have jurisdiction to evaluate that determination. 

18

clear error when it determined that Chehalis Power had commenced

construction by contracting for two turbines.11

As noted above, pursuant to the relevant statutory

provisions, commencement of construction under a PSD permit

requires that, “the owner or operator has obtained all necessary

preconstruction approvals or permits required by Federal, State,

or local air pollution emissions and air quality laws or

regulations and * * * has * * *(ii) entered into binding

agreements or contractual obligations, which cannot be canceled

or modified without substantial loss to the owner or operator, to

undertake a program of construction of the facility to be

completed within a reasonable time.” CAA § 169(2)(A), 42 U.S.C.

§ 7479(2)(A). Rebound’s argument focuses on whether or not

Chehalis Power has satisfied the “binding contractual 
19

obligations” prong of the Act’s definition of commencement of

construction. 

The Agency interprets the statutory phrase “substantial

loss” in the above definition to be satisfied only if: (1) the

owner would have to pay more than ten percent of the total

project cost to cancel construction contracts (the “10%

criterion”); or (2) “the source has so committed itself,

financially and otherwise, to the use of a particular site for a

particular facility that relocation is not an option and delay or

substantial modification would be severely disruptive (the “sitespecific criterion”). 43 Fed. Reg. 26,388, 26,396 (June 19,

1978). The Agency further states that whether a source has

commenced construction must be determined on a case-by-case

basis. Id. 

Rebound focuses its challenge on the fact that Chehalis

Power’s cancellation costs for the purchase of the two turbines

were less than ten percent of the total cost of the project, and

thus Chehalis Power’s loss would not be “substantial.” See

Petition at 14. For example, in its Combined Reply to Chehalis 
20

Power’s Initial Response and Motion for Summary Disposition and

Related Filings at 5, Rebound states:

EFSEC has ruled the down payment did commence

construction, and this down payment was an irrevocable

commitment to construct at a specific site, and the

developer would have been liable for losses of over 10%

of the project’s cost, if actual construction does not

start. EFSEC was simply wrong on the predicate facts

and was wrong in applying the facts to the law.

In fact, Rebound mischaracterizes EFSEC’s determination. 

EFSEC did not find that the 10% criterion was met, but rather

relied on an analysis conducted under the site-specific criterion

which is permissible even in circumstances where the 10%

criterion is not met. In EFSEC’s response to comments, it

explained that in determining Chehalis Power had commenced

construction, it relied on the following factors:

[T]he existing PSD permit had been initially issued and

then renewed once, CP [Chehalis Power] continuously 
21

complied with all Site Certification Agreement

permitting requirements, and CP contracted for the

purchase of the GE [General Electric] advanced dry low

NOx turbines specified in the PSD permit and other

permitting documents. In addition, CP certified that

the GE turbines were purchased specifically for the CP

project because all other turbines previously used, or

projected for future use, by the corporate owner of CP

(Tractebel Power, Inc.) for their other power projects

were from a different manufacturer. The decision by CP

to commit to installation of SCR at the site has

further confirmed the intent and commitment of the

company to have construction of the facility go forward

in a continuous manner. Finally, as a requirement for

the commencement of construction determination,

Chehalis Power prepared a construction time line that

met permitting requirements and continues to observe

that schedule. 

Responsiveness Summary at 6, Comment 2. 
22

Rebound’s Petition does not address in any meaningful way

any of the specific factors discussed in EFSEC’s response to

comments explaining its commencement of construction

determination. Significantly, the only reference to the sitespecific criterion of the substantial loss interpretation in the

Petition is a conclusory statement that “[t]hese turbines are not

the type of site specific equipment, * * *, that EPA memos

indicate the purchase of which will commence construction.” 

Petition at 13. Nowhere in its Petition does Rebound directly

address the factors EFSEC relied upon in its response to comments

regarding its commencement of construction determination. For

example, Rebound does not address the significance of the

certification by Chehalis Power that special turbines were

purchased for the Chehalis Power project and that “all other

turbines previously used, or projected for future use, by the

corporate owner of CP [Chehalis Power] (Tractebel Power) for

their other power projects were from a different manufacturer.” 

Responsiveness Summary at 6. By not addressing the factors

identified in EFSEC’s response to comments, the Petitioner has

failed to show why EFSEC’s response to comments was clear error

or otherwise warrants review -- Petitioner’s burden to carry. 
12Memorandum from G. McCutchen, Chief, New Source Review

Section to J.D. Sullivan, Chief, ALO Enforcement Section, Region

VI, “Request for Determination on Best Available Control

(continued...)

23

See In re Steel Dynamics, Inc., PSD Appeal Nos. 99-4 & 99-5, slip

op. at 13-14 (June 22, 2000), 9 E.A.D. __; In re Kawaihae

Cogeneration Project, 7 E.A.D. 107, 114 (EAB 1997); In re

EcoEléctrica, L.P., 7 E.A.D. 56, 60-61 (EAB 1997). Therefore,

without addressing the merits of EFSEC’s commencement of

construction determination, we deny review on this issue. 

2. Amendments to Permit

Rebound also argues that EFSEC must perform a comprehensive

review of BACT because the PSD Permit Extension was amended. 

Petition at 16. In support of its argument that whenever a PSD

permit is amended, BACT determinations must be reconsidered,

Rebound relies primarily on Order on Motion for Stay, In re

Columbia Gulf Transmission Co., PSD Appeal No. 88-11 (Adm’r, July

3, 1990), along with an EPA memorandum regarding a request for a

BACT determination for the Ogden Martin Tulsa Municipal Waste

Incinerator Facility12 (“Ogden Martin Memorandum”). Id. 
12(...continued)

Technology (BACT) Issues -- Ogden Martin Tulsa Municipal Waste

Incinerator Facility” (Nov. 19, 1987). 

13As previously noted, the term “significant” is defined at

40 C.F.R. § 52.21(b)(23). 

24

In response to Petitioner’s challenge, EFSEC and Chehalis

Power argue that only permit amendments that rise to the level of

“major modifications” require a revised BACT analysis. Since the

amendments requested by Chehalis Power would not result in a

significant13 increase in pollutants, and thus the amendments

would not be considered “major modifications,” Chehalis Power

asserts that the BACT limits in the Amended PSD Permit do not

need to be reconsidered. Chehalis Power’s Initial Response and

Motion for Summary Disposition at 14 (EFSEC joined Chehalis Power

in this motion). 

OGC and the Region have also weighed in on this issue. In

both of their briefs to the Board, they state that while

generally BACT determinations should be updated when a PSD permit

is amended even if there is not a significant increase in

emissions, the question must be approached on a case-by-case

basis and the facts in this particular case support the issuance 
25

of the Amended PSD Permit without reconsidering the BACT

analysis. Amicus Brief of the United States Environmental

Protection Agency’s Office of General Counsel as Requested by

Order of the Environmental Appeals Board Dated June 21, 2001

(“Amicus Brief”) (July 19, 2001); Region’s Response to Rebound’s

Petition for Review (July 12, 2001). 

We begin our analysis by noting, as OGC did in its brief

that, “[t]he CAA and the federal PSD regulations are silent on

the implementation of BACT requirements in the context of PSD

permit amendments.” Amicus Brief at 6. Although the Agency has

reserved a place for a regulation addressing this issue, the

Agency has not yet promulgated such regulations. See 40 C.F.R.

§ 124.5(g)(1). Nor do we find any guidance on this issue

applicable to the facts of this case. 

The cases and memoranda Rebound cites as supporting its

contention that updated BACT analyses are mandated are

distinguishable from the instant case. For example, the Columbia

Gulf case involved a permit appeal where the original PSD permit

had not yet been finalized. The permittee and the State 
26

requested leave from the Administrator during the appeals process

to supplement the administrative record to support the original

BACT determination. In granting the permittee’s request, the

Administrator concluded that the State should update its BACT

determination if, following the close of the comment period, the

State subsequently reopens the record to admit new information

supplied by the applicant. The Administrator added that the

State, in performing the update, should do so “after giving full

consideration to the information submitted by both the applicant

and the Region.” Order on Motion for Stay at 5, In re Columbia

Gulf Transmission Co., PSD Appeal No. 88-11 (Adm’r, July 3,

1990). Thus, the instant matter is clearly distinguishable from

Columbia Gulf since here a final PSD permit has previously been

issued. Columbia Gulf does not address the question whether a

BACT revision is mandated when there is a revision to the permit

subsequent to permit’s issuance. 

The Ogden Martin memorandum is likewise inapposite. This

memorandum involves a fact pattern in which a facility began

operating under its PSD permit and was unable to meet the BACT

emission limits set in the permit. The permittee had requested a 
14While we will not go through each of the other memoranda

cited at pp. 15-19 of the Petition, we note that none of them

provide applicable guidance for this matter. 

27

relaxation of the BACT emission limit in its permit. Under these

facts, EPA Headquarters issued interim guidance to Region VI in

1987 advising that “[a]ny time a permit limit founded in BACT is

being considered for revision, a corresponding reevaluation (or

reopening) of the original BACT determination is necessary.” 

Ogden Martin Memorandum at 2. The memorandum indicates that the

Agency planned to have more comprehensive guidance on the issue

of permit amendments out by the end of that fiscal year. It

advised that “[i]n the interim, this memorandum addresses only

BACT changes for this source and operating sources in similar

situations.” Ogden Martin Memorandum at 1. Thus, this

memorandum is not germane.14

In the absence of any controlling statutory provision or

regulations, and without relevant guidance concerning when an

updated BACT analysis is required in conjunction with an

amendment to a previously issued permit, we must, nonetheless,

decide whether EFSEC and the Region clearly erred or abused their

discretion in declining to revise the BACT analysis here, as 
15See supra part III.A.

16In EFSEC’s Response to Rebound’s Petition for Review, it

cites a January 22, 1993 legal memorandum issued by Raymond 

(continued...)

28

requested in the public comments. Based on the totality of the

circumstances of this case, we find no such clear error or abuse

of discretion. 

In the instant matter, we have a unique set of

circumstances, including an energy supply alert as declared by

the Governor, a final permit which requires substantially

stricter emission limits than the previously existing permit, and

an Administrative Order on Consent signed by the Region in order

to avoid protracted delays due to litigation. Region 10's

Response to Chehalis Power’s Motion Ex. 1 (Governor’s

Proclamation); Administrative Order on Consent (EFSEC Record Ex.

38). Significantly, both EFSEC and the Region determined it was

not necessary to require an updated BACT analysis, and OGC has

indicated its concurrence with that determination. Permit

appeals are reviewed under a clear error/abuse of discretion

standard, and some deference must be given to the permit issuer

on this issue.15, 16 In re Steel Dynamics Inc., PSD Appeal Nos.
16(...continued)

Ludwiszewski, Acting General Counsel, as emphasizing the

deference given to states in situations it asserts are similar to

the instant matter. See EFSEC’s Response to Petition at 2 (July

23, 2001). While we agree that the permitting authority does

enjoy deference in permitting matters, we do not find this legal

memorandum particularly relevant to the issue at hand. The

memorandum cited deals with issues relating to federal

enforcement when there has been a state-issued permit, not, as is

the case in this matter, an appeal of a federal PSD permit issued

by a delegated state. See Memorandum from R. Ludwiszewski,

Acting General Counsel to S. Fulton, Acting Assistant

Administrator, “EPA Enforcement Authority with Respect to Sources

Based on a Finding of a State’s Failure to Comply with New Source

Requirements: The Effect of the 1990 Amendments – Legal Opinion”

(Jan. 22, 1993). 

29

99-4 & 99-5, slip op. at 8 (EAB, June 22, 2000), 9 E.A.D. __; In

re Inter-Power of N.Y., Inc., 5 E.A.D. 130, 144 (EAB 1994) (“In

general the Board will defer to the permit issuer’s judgement

absent evidence of a clear error of fact or law.”). 

As stated above, there is no controlling statutory or

regulatory provision or even on point guidance going to when a

revised BACT analysis is mandated in the context of PSD

amendments to a previously existing permit. Against this

backdrop, and in view of the totality of the circumstances in

this case, we find that the permitting authorities’ decision not 
17In Chehalis Power’s motion for summary disposition, it

asserts that the startup and shutdown NOx emission limits are a

product of State law and are therefore not within the Board’s

jurisdiction to review. Summary Disposition Motion at 18. 

(continued...)

30

to revise the BACT determinations in the Amended PSD Permit does

not constitute clear error or abuse of discretion. 

C. Reopening of Public Comment Period

Rebound argues that EFSEC must reopen the public comment

period in order to allow for comment on changes made to the 

Amended PSD Permit. To the extent Rebound is arguing that

additional public comment should be allowed as part of a revised

BACT analysis, we have addressed this issue above. However, to

the extent the Petition argues that, apart from updating BACT,

the public comment period should be reopened, we evaluate that

argument below. 

Although a bit unclear from the Petition, Rebound apparently

believes that additional public comment should be allowed on BACT

issues generally, the NOx emission limits, the NOx emission

limits for startup and shutdown17 and ammonia emission limits,
17(...continued)

However, both the Region and EFSEC discuss the startup/shutdown

limits in terms of the federal PSD regulations. See Region’s

Response to Petition at 9-13 (explaining that these limits are

supported by previous air quality analyses and that a new BACT

analysis is not necessary); EFSEC’s Response to Petition at 6

(concurring with Region’s Response to Petition regarding the

issue of startup/shutdown limits). Accordingly, upon review, we

do not find that this issue is entirely a creature of state law,

such that the Board is without jurisdiction to examine it. 

31

which are incorporated in the final Amended PSD Permit. Petition

at 4-6. 

Part 124 provides for reopening of the public comment period

in the following instances:

(a)(1) The Regional Administrator may order the public

comment period reopened if the procedures of this

paragraph could expedite the decision-making process.

* * * *

(b) If any data information or arguments submitted

during the public comment period, including information

or arguments required under §124.13, appear to raise

substantial new questions concerning a permit, the

Regional Administrator may take one or more of the

following actions: * * * *(2) Prepare a revised 
32

statement of basis under § 124.7, a fact sheet or

revised fact sheet under § 124.8 and reopen the comment

period under § 124.14; or (3) Reopen or extend the

comment period under § 124.10 to give interested

persons an opportunity to comment on the information or

arguments submitted.

40 C.F.R. § 124.14. 

In past decisions, we have recognized that the permitting

authority has substantial discretion in deciding whether to

reopen the public comment period. See, e.g., In re NE Hub

Partners, L.P., 7 E.A.D. 561, 585 (EAB 1998), review denied sub

nom. Penn Fuel Gas, Inc. v. U.S. EPA, 185 F.3d 862 (3d Cir. 1999)

(“A reopening of the public comment period under section

124.14(b) largely depends on the Region’s discretion * * *.”); In

re Amoco Oil Co., 4 E.A.D. 954, 980 (EAB 1993) (the determination

of whether or not to reopen a public comment period “is generally

left to the sound discretion of the Region”); In re Old Dominion

Elec. Coop., 3 E.A.D. 779, 797 (Adm’r 1992) (“The decision by the

permit issuer to reopen the public comment period is 
18Ammonia slip emissions must be reviewed for their

collateral effects when evaluating certain control technologies

during a BACT analysis. SCR, which uses ammonia as a catalyst to

reduce NOx emissions, is such a technology that requires the

collateral effects of ammonia slip to be evaluated. See In re

Three Mountain Power, PSD Appeal No. 01-05, slip op. at 25 n.18

(EAB, May 30, 2001), 10 E.A.D.__. 

33

discretionary, as is clear from the plain terms of the regulation

* * *.”) As we stated in Ash Grove Cement, “[a] reopening is

generally at the discretion of the Region and is only appropriate

where information received during the comment period raises

‘substantial new questions’ regarding the permit.” In re Ash

Grove Cement Co., 7 E.A.D. 387, 431 (EAB 1997).

With regard to the ammonia emission limits on which Rebound

believes it and others should have the chance to comment, ammonia

emission limits are only regulated under federal PSD regulations

in the BACT context.18 With this as our predicate, and since we

have found that the permitting authorities did not commit clear

error in not updating the BACT determination for NOx, public

comment on the ammonia limit is not required under the federal

PSD regulations. Furthermore, we note that Rebound did comment

on the ammonia emission limit issue. Although no specific 
34

ammonia limit was included in the proposed Amended PSD Permit,

Rebound raised in its comments the possible use of SCR and

discussed what it viewed as being an appropriate ammonia emission

limit. Rebound’s Comments at 29-31 (July 5, 2000). In light of

this and the discretionary nature of 40 C.F.R. § 124.14, it was

not clear error for the permitting authority to decline to reopen

the comment period. 

Rebound asserts also that EFSEC must reopen the public

comment for the startup/shutdown NOx emission limits in the

Amended PSD Permit. Rebound argues that the public did not have

an opportunity to comment on this portion of the Amended PSD

Permit. Petition at 18. However, a review of the record

indicates that the startup/shutdown NOx emission limits were

available to the public and part of the record prior to the close

of the public comment period on July 5, 2000. The limits were

submitted to EFSEC during the public comment period on June 13,

2000 -- 22 days prior to the close of the public comment period. 

See Settlement Agreement; Letter to R. Burmark, Washington Dept.

of Ecology from Eric Hansen, Chehalis Power Consultant (June 22,

2000) (EPA Admin. Record Ex. 15). Moreover, Rebound was on 
35

notice that startup/shutdown emission limits had been set no

later than June 19, 2000, during the public hearing, at which it

was represented, but it apparently chose not to address those

specific limits in its comments filed on July 5, 2000. See

Public Hearing Trans. at 9 (June 19, 2000) (EFSEC Record Ex. 25);

Public Hearing Sign-In Sheet (June 29, 2000) (EFSEC Record

Ex. 24); Rebound’s Comments (July 5, 2000).

The record in this matter indicates that the addition of

startup and shutdown emission limits for NOx, and the tighter NOx

emission limits to the final Amended PSD Permit, resulted from

comments received by Rebound and others during the public comment

period. See generally Rebound’s Comments, EFSEC Record Exs. 10,

12-22, 26 (comments regarding BACT determinations and need for

public comment, comments on NOx emissions and controls, comments

on startup/shutdown limits) & 29 (Rebound comments on BACT

analysis, comments on startup/shutdown limits). Thus, the final

Amended PSD Permit reflected comments received during the public

comment period. Changing the final permit to incorporate

comments is anticipated under the permitting regulations. See 40

C.F.R. § 124.17; NE HUB Partners, 7 E.A.D. at 586-87 (declining 
36

to reopen public comment period where there is no evidence of a

“substantial new question”); Ash Grove Cement, 7 E.A.D. at 431 

(“A reopening is generally at the discretion of the Region and is

only appropriate where information received during the comment

period raises ‘substantial new questions’ regarding the

permit.”); In re Old Dominion Elec. Coop., 3 E.A.D. 779, 797

(Adm’r 1992) (“The revised permit by all accounts is a logical

outgrowth of the notice and comment process and all commenters

have had a fair and reasonable opportunity to present their views

on the permit.”). Taking into account the due deference to the

permitting authorities, Rebound has not established that EFSEC’s

decision not to reopen the public comment period constitutes

clear error. Accordingly, we deny review on this issue. 

D. Inclusion of Rights of Appeal and Delegation Language

Petitioner has also requested that the permit be “rewritten

to contain the appeal rights and EPA joint authority language

that was mandated by the 1992 delegation letter.” Petition at 7. 

This sentence is the only statement on this issue appearing in

the Petition.
19The three-member panel deciding this matter is comprised

of Environmental Appeals Judges Scott C. Fulton, Edward E. Reich,

and Kathie A. Stein. See 40 C.F.R. § 1.25(e)(1). 

37

After reviewing the relevant portions of the record, we do

not find any comments regarding the omitted language either from

Rebound or other commenters. See Public Comments and

Responsiveness Summary, EFSEC Record Exs. 9-30. Nor does Rebound

identify the portions of the record that properly preserve this

issue for review. Thus, Petitioner has failed to satisfy the

procedural requirements of 40 C.F.R § 124.19. Accordingly, we

deny review on Petitioner’s request for additional language in

the Amended PSD Permit.

IV. CONCLUSION

For the foregoing reasons, Rebound’s Petition must be

denied.

So ordered.

ENVIRONMENTAL APPEALS BOARD19

By: /s/ 

Dated: 08/20/01 Edward E. Reich

Environmental Appeals Judge
CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Denying

Review in the matter of Chehalis Generating Facility, PSD Appeal

No. 01-06, were sent to the following persons in the manner

indicated:

Pouch Mail: Jackson Fox

Jeffrey Kopf

Office of Regional Counsel

U.S. EPA, Region X

1200 Sixth Ave.

Seattle, WA 98101 

Fax: (206) 553-0163

Alan W. Eckert 

Kerry E. Rodgers

Associate General Counsel

Air and Radiation Law Office

U.S. EPA (2344A)

Office of General Counsel

1200 Pennsylvania Ave., NW

Washington, D.C. 20460

Fax: (202) 564-5603

U.S. First Class Mail, Irina Makarow

postage prepaid: Energy Facility Site Specialist

P.O. Box 43172

Olympus, WA 98504-3172

Fax: (360) 956-2158

Robert J. Fallis

Assistant Attorney General

Attorney General of Washington 

1125 Washington St. S.E.

P.O. Box 40100

Olympia, WA 98504-0100

Fax: (360)664-0229

Elizabeth Thomas

Kirk A. Lilley

Tracey Trepess

Preston Gates & Ellis, LLP

701 Fifth Ave., Suite 5000

Seattle, WA 98104

Fax: (206) 623-7022
Wayne J. White

Vice President and General Counsel

Tractebel Power, Inc.

1177 West Loop South

Houston, TX 77027

Fax: (713) 552-2364

Rebound

Linda K. Williams 

10266 SW Lancaster Road

Portland, Oregon 97219-6305

Fax: (503) 245-2772

Dated: 08/20/01 /s/ 

Annette Duncan

 Secretary