VOLUME 8

PSD Appeal No. 99–1

ORDER DENYING REVIEW IN PART

AND REMANDING IN PART

Decided August 25, 1999

Syllabus

On January 25, 1999, the Wisconsin Department of Natural Resources (“WDN

issued a prevention of significant deterioration (“PSD”) permit to RockGen Energy Ce

authorizing construction and operation of a 525-megawatt electric power generating fa

ity to be located in the town of Christiana, Wisconsin.

Petitioner, Responsible Use of Rural and Agricultural Land (“RURAL”), seeks Bo

review on the following grounds: (1) WDNR’s best available control technology (“BAC

analysis for nitrogen oxides (“NOX”) was clearly erroneous; (2) WDNR abused its dis

tion by failing to consider demand-side management alternatives to the construction of 

facility; (3) WDNR’s characterization of the facility as a “peak power generating facil

and its inclusion in the final permit of a continuous emission monitoring (“CEM”) exe

tion provision, are inconsistent with certain regulations relating to the acid rain progr

(4) the startup/shutdown provision in the final permit is not federally enforceable; 

(5) WDNR failed to adequately reply to written comments on the draft permit or to exp

changes to the draft permit.

Held: Review is granted and WDNR’s permit decision is remanded as to the foll

ing issues:

•Permit condition I.C.8.a.(2) relating to conditions under which NOX estimation p

cedures may be used in lieu of CEM, because the permit condition does not accura

reflect the language of the applicable regulations. (Section II.D)

•Permit condition I.C.12 relating to exceedances of the permit’s emissions limitati

during startup or shutdown of the facility, so that WDNR can make an on-the-rec

determination as to whether compliance with existing permit limitations is infeasible a

if so, what permit changes are appropriate to minimize excess emissions. If WDNR de

mines that compliance with the permit cannot be achieved during startup and shutdo

despite best efforts, it should specify and carefully circumscribe in the permit the co

tions under which RockGen would be permitted to exceed otherwise applicable emissi

limits and establish that such conditions are nonetheless in compliance with applica

requirements, including national ambient air quality standards and increment provisio

Under such circumstances, a secondary PSD limit may also be considered, provided 

made part of the PSD permit and justified as BACT. In its revision of this permit condi

(unless the revision merely strikes I.C.12 from the permit), WDNR must provide the p
in accordance with the procedures of 40 C.F.R part 124. (Section II.E)

•Given that the record is not clear as to whether there has been mea

pliance with the requirement that the final permit determination be based o

comments received during the public comment period, 40 C.F.R. § 124.18(b

must demonstrate, to a greater degree than heretofore, that it has given, or 

the case may be, thoughtful and full consideration to all public comments b

the final permit determination. (Section II.F)

Review is denied as to the BACT determination issue and the demand

tives issue, which were not properly preserved for review in accordance wi

procedural requirements, and as to any other issues raised in the petition for 

Before Environmental Appeals Judges Scott C

Ronald L. McCallum, and Kathie A. Stein.

Opinion of the Board by Judge McCallum:

Before the Board is a petition seeking review of certain 

of a prevention of significant deterioration (“PSD”) permit issu

State of Wisconsin’s Department of Natural Resources (“WD

permit was issued to the RockGen Energy Center (“RockGen

construction and operation of a power generating facility. The 

Responsible Use of Rural and Agricultural Land (“RURAL”), a

the Board should review the permit in this case because cer

permit’s conditions are clearly erroneous or involve important p

siderations warranting Board review.

I. BACKGROUND

The permit was issued on January 25, 1999, and would 

RockGen to construct and initially operate a 525-megawatt (“M

tric power generating facility (the “facility”) in the town of 

Dane County, Wisconsin. The proposed facility consists of thre

simple-cycle combustion turbines that would operate on natur

primary fuel and on low sulfur No. 2 fuel oil as a back-up. Se

1 WDNR administers the PSD program in Wisconsin pursuant to a d

authority from EPA. See 53 Fed. Reg. 18,983 (May 26, 1988). Because WDNR 

delegate in implementing the federal PSD program within the State of Wiscon

mit is considered an EPA-issued permit for purposes of federal law and is subj

by the Board pursuant to 40 C.F.R. § 124.19. See In re Knauf Fiber Glass, Gm

121, 123 (EAB 1999); In re West Suburban Recycling & Energy Ctr., L.P., 6 E.A

n.4 (EAB 1996) (“‘For purposes of [p]art 124, a delegate State stands in the 

Regional Administrator [and must] follow the procedural requirements of par

permit issued by a delegate is still an ‘EPA-issued permit.’”) (quoting 45 Fed

(May 19, 1980)).
(Administrative Record (“AR”) at 421). The facility is designated a

“peak power” generating facility with varying hours of operation (not 

exceed 3,800 hours per year) depending on power demand.2

The public was given an opportunity to submit written comments 

the draft permit between December 22, 1998, and January 22, 1999. 

addition, WDNR held a public hearing on January 22, 1999. Seve

RURAL members, as well as others (including RockGen), submitted co

ments during the comment period and attended the hearing. See 

988–1274. When the permit was issued on January 25, 1999,3 WDNR p

pared a memorandum summarizing some of the public comme

received.4 Thereafter, WDNR prepared two other documents summariz

and responding to comments.5 These are discussed further below.

In its petition, as amended,6 RURAL objects to the permit on fi

grounds. According to RURAL, the permit warrants Board review becau

(1) WDNR’s best available control technology (“BACT”) analysis 

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2 See WDNR, Analysis and Preliminary Determination for the Construction 

Operation Permits for the Proposed Construction of the Construction [sic] of a Nominal 

Peak Power Electric Generating Facility for RockGen Energy Center to be Located at To

of Christiana, Christina, Wisconsin at 2–3 (Dec. 18, 1998) (AR 722–23).

3 WDNR failed to provide contemporaneous notice of permit issuance to intere

parties at the time the permit was issued. WDNR later corrected this error by sending 

final permit to petitioner on March 1, 1999. See WDNR, Notification of Action on Preven

of Significant Deterioration Permit 98–RV–150 (Mar. 1, 1999) (AR 1275–77) (stating, am

other things, that any person who filed comments on the draft permit may file a peti

for review with the Board within 30 days of service of the notification). The present p

tion was timely filed.

4 See Memorandum from Raj Vakharia (the permit writer), WDNR, to Lloyd Ea

(Jan. 25, 1999) (AR 1019). On the same date, WDNR prepared a memorandum stating 

it had received and reviewed comments from RockGen. Memorandum from Raj Vakha

WDNR, to Dan Johnston, WDNR (Jan. 25, 1999) (AR 988). The memorandum further st

that WDNR responded to comments from the facility by electronic mail and incorpora

changes in response to these comments into the final permit. The memorandum attac

certain comments submitted by RockGen as well as WDNR’s responses. AR 988–1018.

5 See Memorandum from Raj Vakharia, WDNR, to Lloyd Eagan, WDNR (Jan. 28, 19

(AR 1101); Memorandum from Raj Vakharia, to Lloyd Eagan (Mar. 1, 1999) (AR 1192).

Several changes were made to the draft permit in response to comments submi

by RockGen. See Memorandum from Raj Vakharia to Dan Johnston, re: Comments f

RockGen Energy Center (Jan. 25, 1999) (AR 988–1018).

6 The original petition was filed with the Board on April 5, 1999. On April 8, 19

RURAL filed an amended petition correcting certain typographical errors. Amended Peti

for Review (“Amended Petition”).
(2) WDNR abused its discretion by failing to consider demand

natives to the construction of the facility (id. at 16); (3) WDNR

terization of the facility as a “peak power generating facility

inclusion in the final permit of a continuous emission monitorin

exemption provision, are inconsistent with certain regulations 

the acid rain program (id. at 22); (4) the startup/shutdown p

the final permit is not federally enforceable (id. at 24); and 

failed to adequately reply to written comments on the draft pe

explain changes to the draft permit (id. at 26). 

WDNR, RockGen, and the Public Service Commission of 

(“PSCW”) filed responses in opposition to the Amended P

Review.7 In addition to disputing the merits of the issues rai

Amended Petition, WDNR, RockGen, and PSCW assert that cer

raised in the Amended Petition were not raised during the 

period on the draft permit and therefore were not preserved 

with the Board. Thereafter, RURAL filed a consolidated repl

responses. Petitioner RURAL’s Consolidated Reply to 

Department of Natural Resources, RockGen, and Wiscon

Service Commission Responses to Amended Petition fo

(“RURAL’s Consolidated Reply”).8

II. DISCUSSION

A. Standard of Review

The Board’s role in the PSD permitting process is to cons

raised in petitions for review that pertain to the PSD program 

7 See WDNR Response to Amended Petition for Review (“WDNR’s 

RockGen Response to Amended Petition for Review (“RockGen’s Resp

Response of Public Service Commission of Wisconsin to Amended Petition 

(“PSCW’s Response”). The PSCW is an independent administrative agency o

Wisconsin charged with reviewing proposals for new electric generating 

determining whether to grant a Certificate of Public Convenience and Necess

to authorize construction. PSCW’s Response at 1. The CPCN for the propos

facility was issued on December 18, 1998.

8 U.S. EPA’s Office of General Counsel and Region V’s Office of Regional 

behalf of the Office of Air and Radiation and Region V, have submitted an am

this matter. Amicus Brief of EPA Region V and EPA Office of Air and Radiation 

to RURAL’s Amended Petition for Review and the Response of WDNR a

(“Amicus Brief”) (June 11, 1999). WDNR opposes our consideration of the A

Upon consideration, EPA’s motion to submit an amicus brief is granted and 

been incorporated into the record on appeal.
tions. 40 C.F.R. § 124.19; In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121,1

(EAB 1999). The Board may grant review of a permit decision if so

aspect of the decision involves an important matter of policy or exerc

of discretion that warrants review. 40 C.F.R. § 124.19(a). In applying t

standard, the Board is guided by language in the preamble to sect

124.19 that states the “power of review should be only sparingly ex

cised,” and “most permit conditions should be finally determined at 

Regional [State] level.” 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); acco

In re AES Puerto Rico L.P., 8 E.A.D. 324, 328 (EAB 1999). The petitio

bears the burden of demonstrating that review is warranted. AES Pue

Rico, 8 E.A.D. at 328.

In addition, as a prerequisite to obtaining review, a petitioner m

have “raise[d] all reasonably ascertainable issues and submit[ted] all r

sonably ascertainable arguments supporting [its] position by the close 

the public comment period (including any public hearing) un

§ 124.10.” 40 C.F.R. § 124.13; In re Jett Black, Inc., 8 E.A.D. 353, 358 (E

1999); In re Encogen Cogeneration Facility, 8 E.A.D. 244, 249 (EAB 199

The petition must include a demonstration that “any issues being rais

[in a petition for review] were raised during the public comment per

(including any public hearing).” 40 C.F.R. § 124.19. As the Board has p

viously explained, “[t]he effective, efficient and predictable administrat

of the permitting process demands that the permit issuer be given 

opportunity to address potential problems with draft permits before th

become final.” Encogen, 8 E.A.D. at 249–50. “In this manner, the per

issuer can make timely and appropriate adjustments to the permit det

mination, or, if no adjustments are made, the permit issuer can inclu

an explanation of why none are necessary.” In re Essex County (N

Resource Recovery Facility, 5 E.A.D. 218, 224 (EAB 1994) (quoting In 

Union County Resource Recovery Facility, 3 E.A.D. 455, 456 (Ad

1990)). Any issues not previously raised may not be raised on app

except to the extent that these issues were not reasonably ascertaina

or concern changes from the draft to the final permit decision. 40 C.F

§ 124.19(a). In the present case, RURAL has failed in some instances 

establish that issues on which it now seeks review were raised during 

public comment period or were not reasonably ascertainable at that tim

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The Clean Air Act (“CAA”) established the PSD program t

air pollution in certain areas, known as “attainment” areas, 

quality meets or is cleaner than the national ambient air quality 

(“NAAQS”), as well as in unclassifiable areas that are neither “a

nor “non-attainment.” 9 CAA §§ 160–169, 42 U.S.C. §§ 7470–7479

Maui Elec. Co., 8 E.A.D. 1, 4 (EAB 1998). The statutory PSD 

are carried out through a regulatory process that requires preco

permits for new major stationary sources, such as RockGen’s 

facility. See 40 C.F.R. § 52.21.

The CAA and the PSD regulations require, among other t

new major stationary sources and major modifications of suc

employ the “best available control technology” to minimize em

regulated pollutants. CAA § 165(a)(4), 42 U.S.C. § 7475(a)(4)

§ 52.21(j)(2). The PSD regulations define BACT in part as follo

Best available control technology means an emissio

limitation * * * based on the maximum degree of redu

tion for each pollutant subject to regulation under [t

CAA] which would be emitted from any proposed ma

stationary source * * * which the Administrator, on a ca

by-case basis, taking into account energy, environment

and economic impacts and other costs, determines 

achievable for such source * * *.

40 C.F.R. § 52.21(b)(12). Under the rules governing the PSD 

process, the permit applicant is responsible for proposing an 

limitation that constitutes BACT for each regulated pollutant an

viding information on the control alternatives that can be used 

it. 40 C.F.R. § 52.21(n)(1)(iii). The ultimate BACT decision is m

permit-issuing authority.

In making BACT determinations, permit issuers frequently 

guidance document issued by the Agency in 1990. See U.S. 

9 The proposed site of the facility is in an area that is attainment for p

which NAAQS have been established. RockGen Energy Center Environm

Statement at 19 (AR 436). The NAAQS are “maximum concentration ‘ceilings’ 

terms of the total concentration of a pollutant in the atmosphere.” U.S. EPA, 

Review Workshop Manual C.3 (draft Oct. 1990). NAAQS have been set fo

pollutants: sulfur dioxide, particulate matter, NOx, carbon monoxide, ozon

See 40 C.F.R. §§ 50.4–50.12.
Under the process set forth in the NSR Manual, the permit issuers us

“top down” method for determining BACT:

The top-down process provides that all available control

technologies be ranked in descending order of control

effectiveness. The PSD applicant first examines the most

stringent—or “top”—alternative. That alternative is established as BACT unless the applicant demonstrates, and

the permitting authority in its informed judgment agrees,

that technical considerations, or energy, environmental,

or economic impacts justify a conclusion that the most

stringent technology is not “achievable” in that case.

NSR Manual at B.2.11

In the present case, to meet the emissions limitation represent

BACT for NOx , the permit requires the use of Dry Low NOx Burn

(“DLN”) when the facility is burning natural gas and a water injection s

tem when the facility is burning fuel oil. WDNR states that it followed 

“top-down” method discussed above in reaching this determinati

WDNR Response at 3, 11. Under this approach, WDNR maintains tha

eliminated Selective Catalytic Reduction (“SCR”) technology as BACT 

control NOx emissions when the facility is burning natural gas becau

WDNR determined that conventional SCR technology was not technica

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10 Although the NSR Manual is not a binding rule, we have looked to it as a statem

of the Agency’s thinking on certain PSD issues. AES Puerto Rico, 8 E.A.D. at 331 n.8.

11 As the Board explained in Maui Elec. Co., 8 E.A.D. at 5–6, the NSR Manual prov

for a five-step procedure for implementing the top-down analysis. The first step is to id

tify all “available” control options. NSR Manual at B.5. (The term “available” is defined 

“those air pollution control technologies or techniques with a practical potential for ap

cation to the emissions unit and the regulated pollutant under evaluation.” Id.) The sec

step is to eliminate “technically infeasible” options. Id. at B.7. This involves first determ

ing for each technology whether it is “demonstrated,” which means that it has been insta

and operated successfully elsewhere, and if not demonstrated, then whether it is “availa

and “applicable.” (The term “available” in this context refers to whether the technolog

commercially available. Id. at B.17. An available technology is considered to be “applica

if it can be installed and operated on the source under consideration. Id.) Technolo

identified in step one but that are not demonstrated and either not available or not ap

cable are eliminated under step two from further analysis. The third step of the BACT an

sis is to list the remaining options (not eliminated in step two) in order of stringency, w

the most stringent option listed first. Id. at B.7. In step four, energy, environmental, and e

nomic impacts are considered and the top alternative is either confirmed as appropriat

is determined to be inappropriate. Id. at B.29. Finally, under step five, the most effec

control alternative not eliminated in step four is selected as BACT. Id. at B.53.
that WDNR’s elimination of SCR technology during the BACT an

erroneous. Similarly, RURAL asserts that the selection of wate

rather than SCR to control NOx when the facility is burning fu

erroneous. Amended Petition at 5. 

WDNR and RockGen (referred to collectively as “responde

the Board to dismiss RURAL’s assertions in this regard becaus

ing to respondents, this issue was not raised during the comm

and thus was not preserved for review with the Board. RURA

this assertion, citing to various portions of the administrat

where it alleges the issue was raised. For the following reasons 

with respondents that because the issue of whether SCR sh

been selected as BACT was reasonably ascertainable12 but was 

during the comment period, the issue was not preserved for 

the Board.

In support of its assertion that this issue was raised during 

ment period, RURAL cites to comments submitted by two RU

bers, Mr. Rod Clark and Mr. Fred Redford. RURAL’s Consolid

at 4. During the public comment period, Mr. Clark raised three 

concerning DLN: (1) whether DLN technology was curren

applied to combustion turbines of the size proposed by 

(2) how many facilities similar to RockGen were currently uti

technology and what kind of performance information was ava

(3) what chemicals are used with DLN technology. Memoran

Raj Vakharia, WDNR, to Lloyd Eagan, WDNR, at 3 (Mar. 1, 199

1st Memo”) (AR 1192, 1193).13 While Mr. Clark’s comments ra

12 Public notice of the proposed permit determination was published on D

1998, and the draft permit as well as relevant documents (including the prelim

determination) were made available for public review at the WDNR Bu

Management Headquarters in Madison, Wisconsin, and at the Dane County Lib

AR 865–66, 873–75. RURAL does not allege, nor does the record reflect, that th

unable to obtain access to relevant information during the comment period.

13 WDNR responded to these questions as follows:

Answer to Question #1:

Currently [DLN] combustor technology is available and being used on t

bustion turbines (similar in size to the one being proposed by RockGen 

Center) that are operating in the combined cycle mode operation. For e

the LS Power Co-Gen facility in Whitewater, Wisconsin. General Electric 

the 185 MW combustion turbine * * * to become commercially available 

Continued
suggest that the BACT analysis was erroneous because WDNR failed 

select SCR over DLN as BACT for NOx.

RURAL also states that during the public hearing Mr. Redford rais

similar questions about the use of DLN technology. In particular, 

Redford stated, in part, that “looking only at DLN burners and meet

Clean Air Act requirements is a narrow vision. * * * DLN burners have 

been widely tested.” Memorandum from Raj Vakharia, WDNR, to Llo

Eagan, WDNR, at 3 (Jan. 28, 1999) (AR 1103). As with Mr. Clark’s co

ments, however, we find nothing in the above-quoted comments argu

the point now posited—that WDNR’s BACT analysis was flawed becau

it failed to select SCR over DLN for control of NOx.

RURAL also points to Mr. Redford’s written comments, whi

according to RURAL, specifically mention SCR technology as an alter

tive to DLN combustors. These comments state, in pertinent part:

No matter how much we talk about selective catalytic

reductions, using lanthium, titanium, or xerolite as catalysts or Dry NOx Reduction, * * * the fact still remains: the

amount of emissions from this project is still more than

being emitted from that piece of land at present which is

ZERO!

Testimony of Fred Redford: Air Permit Hearing (Jan. 22, 1999) (Exhibi

to Amended Petition). Contrary to RURAL’s assertion, this comment do

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Answer to Question #2:

There are few facilities who have installed simple combustion turbines, 83 MW,

that have [DLN] combustor technology. The BACT/LAER clearinghouse information provides the names of the facilities that have been permitted to construct

simple cycle combustion turbines having [DLN] combustors. Also the BACT/LAER

Clearinghouse information provides the dates the PSD permits were issued by

the appropriate State Agencies. These similar turbines have been able to meet a

NOX emission limit of 9 ppmdv at 15% 02.

The BACT/LAER Clearinghouse information was shared with Mr. Clark after the

hearing was concluded.

Answer to Question #3:

There are no chemicals being used in the [DLN] technology.

March 1st Memo at 3.
regardless of what technology is selected, emissions will be gr

if the facility were not built. Since it does not advocate the re

its of SCR over DLN, this comment is unrelated to the issue RU

to raise on appeal, and thus does not preserve the issue for re

Finally, RURAL points out that in responding to various 

WDNR referred “repeatedly” to the BACT analysis conducte

facility. Thus, according to RURAL, by virtue of WDNR’s respon

ments, WDNR tacitly recognized “that these comments relate 

the Department’s BACT analysis.” RURAL’s Consolidated Repl

find this argument unpersuasive. There is nothing in WDNR’s r

comments to suggest that the comments were somehow addr

relative merits of SCR over DLN. The fact that a permitting 

responds to a specific question regarding DLN control tech

referring to the BACT analysis does not mean that all questio

to the BACT analysis may be raised in a petition for review. 

Elec. Co., 8 E.A.D. at 12 (mere reference to a previously issued 

a different facility was insufficient to apprise the permit issu

permittee sought to challenge the draft permit’s conditions for 

[sulfur dioxide emissions] based on an alleged inconsistency wi

viously issued permit); see also In re Florida Pulp & Paper Assoc

49, 54–55 (EAB 1995) (comment regarding one aspect of testing 

required by a Clean Water Act permit was not sufficient to pr

appeal the general question of authority to require any sludg

In re Amoco Oil Co., 4 E.A.D. 954, 975 (EAB 1993) (argument 

whether the EPA needed information that was required to be p

a RCRA permit condition was not preserved for review where 

only raised issue regarding burden of proving the informati

Pollution Control Indus. of Ind., Inc., 4 E.A.D. 162, 166–69 (

(comments on two particular aspects of testing requirement of 

Conservation and Recovery Act permit were not sufficient to ra

al objection to any testing requirement).

In the present case, although commenters raised certain 

regarding DLN technology, nothing in the comments sug

WDNR’s elimination of SCR during the BACT analysis was erro

did anyone claim that DLN was not BACT. Further, upon exam

the record before us, we have found no comments (nor 

Amended Petition cite to any) asserting that the WDNR e

selected water injection rather than SCR as BACT for control of 

the facility is burning fuel oil rather than natural gas. Accord

issue will not be considered as a basis for review of the p

before us.
RURAL asserts that WDNR abused its discretion by failing 

consider demand-side management (“DSM”) alternatives as part of 

BACT analysis or at some other stage of the permitting process bef

issuing the permit in this case. Amended Petition at 16–21. RURAL stat

Energy conservation and load management are “demandside” alternatives to “supply-side” electric generating

facilities. Demand-side alternatives (e.g., high efficiency

motors, appliances, lighting, etc.) are simply alternative

“production processes * * * methods, systems and techniques” for meeting consumers’ energy service needs. 42

U.S.C. § 7479(3) and 40 C.F.R. § 52.21(b)(12). Air emissions are reduced when demand-side “nega-watts” are

substituted for megawatts generated by burning gas or oil

in facilities like the proposed RockGen project.

Amended Petition at 17. Because this issue was reasonably ascertaina

but was not raised during the comment period, it was not preserved 

review.

In attempting to demonstrate that this issue was raised during 

comment period, RURAL refers the Board to the testimony of Mr. Ch

Deisinger during the public hearing. In that testimony, Mr. Deisinger s

ed, in pertinent part:

RURAL is objecting to the decision to substitute an accelerated review by the [PSCW] and the [WDNR] for the customary [Wisconsin Environmental Policy Act] process,

which has prevented the exploration of potentially

significant environmental impacts of the proposed project and all reasonable alternatives.

Testimony of Chris Deisinger, on behalf of RURAL at 1 (AR 103

According to RURAL, the term “reasonable alternatives” must refer to DS

Specifically, RURAL states that “[s]ince, in a thermodynamic sense, DSM 

ultimately the only real alternative to a power plant—it is clear t

Mr. Deisinger’s comments about alternatives were, in large part, ab

DSM.” Consolidated Reply at 7. We reject this argument for two reason

First, the comment is principally objecting not to WDNR’s failure 

consider any specific alternatives, but to the accelerated permitting p

cedures being applied in this case. Thus, it is far from clear that the co

ment was intended to address consideration of DSM. And second, 

VOLUME 8
authority to meaningfully react. Apart from DSM, the term could 

ily refer to any number of variations of the project as proposed 

selection of an alternative site). Indeed, in a footnote to the abo

statement in RURAL’s Consolidated Reply regarding the mean

term “alternatives,” RURAL states that “[i]n addition to DSM, Mr. 

remarks about alternatives were almost certainly intended to co

cern about the state regulatory agencies’ failure to consider 

* * * sites for the plant.” RURAL’s Consolidated Reply at 7 n.3. Th

itself concedes that the term does not focus attention on DSM.1

RURAL also asserts that the comments of a Dane Cou

Supervisor, Mr. Bob Salov, addressed the DSM issue by criticizi

of the proposed facility. Consolidated Reply at 8. Mr. Salov stat

tinent part, that the capacity of the facility is three times greate

identified need. (AR 1037). This comment, however, does n

WDNR’s alleged failure to consider DSM. If anything, the com

gests that the generating capacity of the plant should be sc

because it exceeds existing need, not that, with the use of DSM

ing need can be otherwise addressed. Indeed, this is precisel

comment was interpreted by WDNR, which responded as foll

The [WDNR] does not have any regulatory authority 

dictate how many Megawatts of capacity should be bu

Energy capacity and electric need issues are regulat

and approved by the Public Service Commission ind

pendently of [WDNR] regulatory authority and approva

The Department does and has ensured in its review th

the proposed power plant meets all applicable criteria 

permit approval * * *.

Memorandum from Raj Vakharia, WDNR, to Lloyd Eagan, W

(Mar. 1, 1999) (AR 1192, 1194).

At a minimum, commenters must present issues with 

specificity to apprise the permit issuing authority of the issu

Absent such specificity, the permit issuer cannot meaningfully 

14 We note further that in its Amended Petition, RURAL states that it has 

appeal of what RURAL characterizes as “numerous” deficiencies in the E

Impact Statement (“EIS”) prepared by WDNR and PSCW. Amended Petition at 

First Amended Petition for Review, before the State of Wisconsin Circuit Cou

(“State Appeal”) (Exhibit M to Amended Petition). In the section of the Sta

which RURAL asserts that the EIS failed to consider reasonable alternatives, th

ple of such an alternative that RURAL provides is the consideration of an al

for construction of the facility. State Appeal at 6.
(Adm’r 1989) (“Just as ‘the opportunity to comment is meaningless unl

the agency responds to significant points raised by the publ

* * *, so too is the agency’s opportunity to respond to those comme

meaningless unless the interested party clearly states its position.”) (qu

ing Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 1520 (D

Cir. 1988)) (internal citations omitted).

Under the circumstances of this case, we conclude that the issue 

whether WDNR’s permit decision was erroneous because it allege

failed to consider DSM, was not raised with sufficient specificity dur

the comment period and thus was not preserved for review by the Boa

Moreover, the Amended Petition fails to include the required “demo

stration that any issues being raised were raised during the public co

ment period.” 40 C.F.R. § 124.19(a). Review is therefore denied on t

issue.15

D. Characterization of the Facility as a “Peaking Unit”

RURAL asserts that the permit improperly characterizes the facility 

a “peaking unit.” According to RURAL:

In the CAA context, peaking unit is a term of art with a

very specific meaning. It is wholly inappropriate for a

PSD permit that authorizes a facility to operate for up to

3800 hours per year to characterize that facility as a “peak

power generating facility.”

Amended Petition at 23. RURAL points out that the acid rain regulatio

define “peaking unit” as a unit that has:

(i) An average capacity factor of no more that 10.0 percent during the previous three calendar years and

(ii) A capacity factor of no more than 20.0 percent in each

of those calendar years.

40 C.F.R. § 72.2. Under the acid rain provisions, a facility that fails to m

the above-quoted definition of a peaking unit is required to install a N

continuous emission monitoring (“CEM”) system. 40 C.F.R. § 75.12(a)

“peaking unit,” on the other hand, may, in lieu of complying with C

VOLUME 8

15 We note that in its Amicus Brief, the Agency argues that this issue was preserved 

review. Amicus Brief at 17 n.5. For the reasons stated above, however, we disagree.
the hourly NOx emission rate using a procedure specified in t

tions. 40 C.F.R. § 75.12(c).

The CAA acid rain and PSD provisions are separate progr

the Act.16 Notwithstanding their separate statutory origins, a 

choose to implement certain aspects of the acid rain progra

junction with the issuance of the PSD permit.17 WDNR did 

instance by adding the following acid rain provision to the PSD 

the suggestion of RockGen:18

(2) * * * NOx estimation procedures may be used in li

of CEM for determining the average NOx emission ra

and hourly NOx emission rate as long as the unit’s op

ation does not exceed either of the following criteria:

(a) The electrical output does not exceed 328,2

megawatt-hours in any calendar year (20 percent of t

unit nameplate capacity of 187.3 MW times 8760 hou

per year);

(b) The electrical output does not exceed 492,2

megawatt-hours in any three consecutive years (10 p

cent of the unit nameplate capacity of 187.3 MW tim

8760 hours per year times three years).

Permit Condition I.C.8.a.(2)(a)–(b) (AR 978). According to W

provision accurately reflects the above-mentioned provisions o

rain program and “actually made the [PSD] permit more stringen

Response at 15.

In objecting to the specifics of this permit condition, RU

that a more restrictive definition of “peaking unit” was added 

rain provisions in what is referred to as the NOx State Imple

Plan (“SIP”) rule. See 63 Fed. Reg. 57,356 (Oct. 27, 1998). Unde

certain states, including Wisconsin, were required to submit SIP 

by September 30, 1999, containing provisions “adequate t

16 Compare CAA §§ 160–169, 42 U.S.C. §§ 7470–7479 (Prevention o

Deterioration of Air Quality), with CAA §§ 401–416, 42 U.S.C. §§ 7651–

Deposition Control).

17 The State of Wisconsin has been authorized to implement the acid r

See 60 Fed. Reg. 12,128 (Mar. 6, 1995). 

18 See E-Mail message from RockGen to WDNR (Jan. 25, 1999) (AR 937A
significantly to nonattainment in, or interfere with maintenance by

downwind State.” Id. at 57,358. As, however, the SIP requirements of t

rule have been stayed by the United States Court of Appeals for 

District of Columbia, we need not address this issue. See Michigan v. EP

No. 98–1497 (D.C. Cir. May 25, 1999).

Upon examination of the permit condition I.C.8.a.(2), however, 

conclude that it does not accurately reflect the language of the acid r

regulation that it purports to implement. In order to be considered 

“peaking unit” and use procedures for estimating hourly NOx emissio

in lieu of complying with CEM requirements, a unit must meet 

definition of a peaking unit at 40 C.F.R. § 72.2. That section states tha

peaking unit must have an “average capacity factor of no more than 1

percent during the previous three calendar years.” 40 C.F.R. § 72.2 (emp

sis added). The language in RockGen’s final permit, however, states t

NOx estimation procedures may be used where electrical output does 

exceed 10 percent of capacity “in any three consecutive years.” Per

Condition I.C.8.a.(2)(b) (AR 978) (emphasis added). This language depa

from the language of the regulations and, in so doing, creates an am

guity that should be resolved before the permit becomes effective.

The permit language is ambiguous in that it can be interpreted 

being either more stringent or less stringent than the applicable regu

tion. That is, this language could be interpreted as prohibiting electri

output from ever exceeding 10 percent over a three-year period. Such 

interpretation would make the permit more stringent than the abo

quoted regulatory provision, which states that average electrical outp

may not exceed 10 percent of capacity, whereas annual electrical outp

may be as high as 20 percent in any single year. On the other hand, t

language could also be interpreted as less stringent than the regulati

Specifically, as currently worded, the permit allows the permittee to p

any three-year period as a reference point rather then the “previous th

calendar years” required by the rule. Under these circumstances, the p

mit is remanded to WDNR for appropriate revisions.19

VOLUME 8

19 We note that because the disputed permit provision implements a requiremen

the acid rain program, had WDNR omitted this provision entirely it would not have aff

ed the validity of the PSD permit. While it is not the Board’s role to initiate inclusion 

acid rain requirements in a PSD permit while exercising its authority under 40 C

§ 124.19, once a state permit-issuing authority has taken steps to include an acid rain p

vision in a PSD permit, the Board may then exercise plenary authority over the PSD 

mit to ensure that any non-PSD requirements do not jeopardize the integrity of the P

permit qua permit.
Permit condition I.C.12 allows RockGen to exceed the per

sion limitations “if the emissions are temporary and due to 

shutdown of operations carried out in accord with a plan and 

approved by the Department. (s. NR 436.03(2)(b) Wis. Adm

Permit Condition I.C.12.a.(1) (AR 981). In addition, this provis

If the permittee plans to submit a startup and shutdow

plan and schedule, the permittee shall submit the pl

and schedule to the Department, South Central Regio

no later than 4 months prior to initial operation of t

facility. If the plan is approved by the Department, t

permittee shall thereafter comply with the condition

schedules, reporting, recordkeeping and all oth

requirements in the approved plan.

Permit Condition I.C.12.b (AR 981).

RURAL asserts that the Board should invalidate this 

because it is not federally enforceable. In particular, RURAL st

As drafted, the RockGen final permit allows the perm

tee to seek a custom startup and shutdown plan outsi

of the PSD permitting process. There is no indication th

such a plan would be subject to federal review a

approval—and, consequently, the terms of such a pl

would not appear to be federally enforceable. On 

face, permit condition I.C.12 violates the basic requi

ment that all emission limitations in a PSD permit mu

be federally enforceable.

Amended Petition at 25. Thus, according to RURAL, WDNR 

including this provision in the final permit. Id.

20 The cited provision of the Wisconsin Administrative Code states, in pa

Exceptions in excess of emission limitations set in chs. NR 400 to 499 

allowed in the following circumstances: * * * (b) When emissions in exce

limits are temporary and due to scheduled maintenance, startup or shutd

operations carried out in accord with a plan and schedule approved 

department.

Wis. Admin. Code § 436.03(2)(b) (1999).
authorized under Wisconsin law and is necessary in the present ca

According to WDNR:

It may not be technically feasible to comply with all of

the stringent BACT emission limits during startup and

shutdown of a combustion turbine. For example, all of

the BACT emission limits in the Permit require that the

Facility operate at not less than 50% load. Clearly, while

the Facility is starting up and shutting down it cannot

comply with the “50% load” BACT emission limit. Other

emission limits which may be exceeded during startup

and shutdown are the limits for CO, NOx and visible

emissions. Any combustion source operating at low loads

has difficulty satisfying stringent emission limitations for

those emissions that are directly related to the quality of

combustion, namely CO, NOx and visible emissions. In

general, combustion proceeds efficiently when there is

ample time for the combustion reactions to occur, when

furnace temperatures are high enough throughout the

furnace to get the reactions to go thermodynamically,

and when there is sufficient mixing to bring reactants

together and, thereby, sustain the combustion process.

When a combustion source is barely operating, for example at startup and shutdown, the combustion process is

not efficient. At such times, the furnace temperatures are

both considerably lower than at design conditions and

unevenly distributed throughout the furnace volume. Gas

flow rates at these conditions are also much lower than

at design conditions. Consequently, the flames are not

ideal, resulting in elevated CO emissions due to incomplete combustion. For this same reason the visible emissions may also be elevated. It is also possible for NOx

emissions to be elevated during startup and shutdown as

a consequence of, for example, excessive combustion air

levels in the furnace.

WDNR Response at 17–18. With regard to the enforceability of any st

up/shutdown plan approved by the state, WDNR states that because 

permit provides that RockGen must comply with the approved plan, 

plan would be enforceable by both the state and EPA. Id. at 19. Upon co

sideration, we conclude that the permit must be remanded on this issu

VOLUME 8
ed during startup and shutdown, EPA guidance indicates 

exceedances are common and can be reduced or eliminated w

planning.21 In particular, EPA guidance states, in part, that:

Startup and shutdown of process equipment are part 

the normal operation of a source and should be accou

ed for in the planning, design and implementation 

operating procedures for the process and control equ

ment. Accordingly, it is reasonable to expect that care

and prudent planning and design will eliminate violatio

of emission limitations during such periods.

Rasnic Memo at 2; see also 1983 Bennett Memo at 1; 1982 Ben

attachment at 1.

WDNR, citing the Rasnic Memo, acknowledges that “norm

tions [of the facility] necessarily include startup and shutdow

Response at 18. In addition, WDNR has acknowledged that du

up and shutdown, emissions may exceed permit requ

Nevertheless, it does not appear from the record before us th

gave sufficient consideration to design or other possible chan

proposed facility to address this issue. On the contrary, it ap

the disputed permit provision was added as an afterthought in 

to language suggested by RockGen four days before the p

issued. See AR 989.

Although RockGen is required to comply with the provi

plan to be approved by WDNR at a later date, there is no pro

the plan itself to be subject to the public notice and review req

of 40 C.F.R. § 52.21 and part 124. The provision authorizing the 

not specify what conditions might be included in a plan or ind

criteria the State will use in approving the plan. Thus, althoug

mit appears to contemplate that emissions in excess of the lim

lished in the permit may well occur during startup and shutdow

not appear as if WDNR gave sufficient consideration to appropr

ures to minimize or eliminate such emissions. As currently d

21 See, e.g., Memorandum from John B. Rasnic, Director, Stationary Source 

Division, Office of Air Quality Planning and Standards, U.S. EPA, to Linda 

Director, Air, Pesticides and Toxics Management Division, U.S. EPA Region I (J

(“Rasnic Memo”); Memorandum from Kathleen M. Bennett, Assistant Adminis

Noise, and Radiation, U.S. EPA, to Regional Administrators, Regions I–X (Fe

(“1983 Bennett Memo”); Memorandum from Kathleen M. Bennett, Assistant A

for Air, Noise, and Radiation, U.S. EPA, to Regional Administrators, Regions I

1982) (“1982 Bennett Memo”).
ation and maintenance or design, thus precluding attainment.” Ras

Memo at 2.22

Under these circumstances, we conclude that the permit provis

must be remanded to WDNR. On remand WDNR must reconsider a

revise this provision. In particular, if WDNR intends to include such 

provision, it must make an on-the-record determination as to whet

compliance with existing permit limitations is infeasible during start

and shutdown, and, if so, what design, control, methodological or ot

changes are appropriate for inclusion in the permit to minimize 

excess emissions during these periods.23 In so doing, the State may a

require that once the facility is operational any permit provisio

designed to reduce emissions during startup and shutdown be refin

over time so as to increase their efficiency and effectiveness. See, e.g., 

re Hadson Power 14—Buena Vista, 4 E.A.D. 258, 291 (EAB 19

(acknowledging permit provision requiring review of NOx emission li

tation prior to issuance and each renewal of an operating permit, a

stating that “[w]e would expect that if the performance of [the facil

* * * demonstrates the achievability of a more stringent emission lim

tion, the current limit will be reconsidered and adjusted appropriately

In re Pennsauken County, N.J. Resource Recovery Facility, 2 E.A.D. 7

771 (Adm’r 1989) (noting the addition of an optimization clause in 

permit requiring the State to minimize emissions of NOx and ammo

based on tests conducted after permit issuance). If WDNR determines t

compliance with the permit cannot be achieved during startup and sh

down despite best efforts, it should specify and carefully circumscribe 

the permit the conditions under which RockGen would be permitted 

exceed otherwise applicable emissions limits and establish that such co

ditions are nonetheless in compliance with applicable requiremen

including NAAQS and increment provisions. Under such circumstanc

a secondary PSD limit may also be considered, provided it is made p

of the PSD permit and justified as BACT. In its revision of this permit co

dition (unless the revision merely strikes I.C.12 from the permit), WD

VOLUME 8

22 We also note, as the Agency states in its Amicus Brief, that “there is no assura

that the establishment of [a startup and shutdown plan] will be subject to the public no

and review requirements of 40 C.F.R. §§ 52.21 and 124.” Amicus Brief at 13. The Age

states further, and we agree, that the permit provision improperly allows for modifica

outside of the PSD permitting process. Id.

23 Mandating the consideration of such design and other changes to address exc

emissions is consistent with the definition of BACT in the PSD regulations, which requi

among other things, an emissions limitations that the Administrator determines is ach

able “through application of production processes or available methods, systems, and te

niques * * * for control of such pollutant.” 40 C.F.R. § 52.21(b)(12).
a petition for review with the Board in accordance with the p

of 40 C.F.R part 124.

F. Response to Comments

RURAL asserts that WDNR failed to adequately respond to 

submitted during the comment period as required by 

§ 124.17(a). Amended Petition at 26. That section requires stat

a response to comments when a final permit is issued. The 

must, among other things, briefly describe and respond to all 

comments raised during the comment period or the public h

be made available to the public. 40 C.F.R. § 124.17(a)(2), (

states that WDNR did not issue a publicly available response 

when the permit was issued on January 25, 1999. According 

the only publicly available document containing responses pr

WDNR was dated January 28, 1999, three days after the p

issued. See Memorandum from Raj Vakharia, WDNR, to Llo

WDNR (Jan. 28, 1999) (“January 28th Memo”) (AR 1101). It furt

that a later document, dated March 1, 1999, containing respons

ments was never found among the documents in the adm

record whenever it conducted periodic searches of WDNR’s 

files from early February through mid-March. See Memorandum 

Vakharia, WDNR, to Lloyd Eagan, WDNR (Mar. 1, 1999) (“

Memo”) (AR 1192). As to the March 1st Memo, it asserts that 

experience suggests that the document may not have been 

available,’ as required by 40 C.F.R. § 124.17(c).” RURAL’S Co

Reply at 19–20.

In response to RURAL’s petition, WDNR states that it a

responded to all significant public comments. In particular, W

to three documents in support of its contentions. These are: (1) 

25, 1999 memorandum purporting to summarize and respond 

comments;24 (2) the January 28th Memo, which responded t

questions raised at the public hearing and to comments mad

RockGen representatives; and (3) the March 1st Memo respon

significant comments, including those made by opponents an

ers of the proposed facility. WDNR asserts that, taken toge

three documents satisfied WDNR’s obligation to adequately r

public comments and that these documents were available to 

tioner as part of the permit record.

24 Memorandum from Raj Vakharia, WDNR, to Lloyd Eagan, WDNR (Ja

(“January 25th Memo”) (AR 1019).
WDNR, it is clear that WDNR failed to issue a complete response to co

ments at the time the permit was issued as required by the regulatio

The only document issued contemporaneously with the permit was 

January 25th Memo. Although this memorandum appears to summar

the bulk of the public comments, it does not actually respond to tho

comments despite the fact that it expressly states that it contains su

maries of “the Department’s responses to the comments.” Thus, there 

no verifiable indication in the administrative record submitted to 

Board that WDNR actually considered these comments either before 

at the time it made its final permit determination. In its January 2

Memo, WDNR revised the January 25th Memo to include summaries 

comments submitted by four representatives of RockGen. The Janu

28th Memo also summarizes and responds to three questions raised 

an opponent of the project at the public hearing and briefly responds 

those questions. As far as we can determine from the administrat

record, this is the first occasion on which WDNR offered responses of a

kind to any public comments, yet this effort is incomplete inasmuch a

fails to respond to the other commenters. The March 1st Memo is als

revision of the January 25th Memo but, in this instance, makes good w

its representation of responding to public comments. The Memo includ

responses to comments referenced in both the January 25th and Janu

28th Memos.

Given the state of the record on appeal, it is not clear to us that th

has been meaningful compliance with the requirement that the final p

mit decision be based on the administrative record, which includ

comments received during the public comment period. See 40 C.F

§§ 124.18(a), (b)(1). The fact that there was no response to comments 

the record on January 25, 1999, combined with a delay of over a mo

before the required response surfaced in the March 1st Memo, creates 

least the appearance of WDNR not giving consideration to the publ

comments before the permit was actually issued. In addressing a sim

issue regarding the failure of the Agency to timely respond to comme

on a federally issued Resource Conservation and Recovery Act perm

the EPA Administrator stated:

One purpose of requiring the Region to issue a response

to comments at the time of permit issuance is to insure

that such comments are given serious consideration during the course of the permit-writing process. If the

Region prepares a response to comments after it has

already made its final permit decision, it runs the risk that

the comments will not be considered with an open mind

but instead with an eye toward defending the decision.

VOLUME 8
Atochem involved a permit issued by an EPA regional official r

a state agency, we think the concerns expressed in Atochem 

this case. The rules providing for public comments and requiri

permit issuer respond to those comments contemplate that 

issuer will be informed by and give serious consideration to p

ments. From the record before us, a reasonable basis exists fo

that this occurred. 

Under these circumstances, this matter must be remanded 

so it can demonstrate, to a greater degree than heretofore, 

given, or will give, as the case may be, thoughtful and full con

to all public comments before making the final permit dete

See In re West Suburban Recycling & Energy Ctr., L.P., 6 E

710–11 (EAB 1996) (remanding PSD permit determination and 

that state permit-issuing authority comply with permit decisio

under part 124). We take this action even though it does not a

RURAL has suffered any particularized prejudice from WDNR’

timely respond to comments. Indeed, RURAL does not alleg

record does not reflect, that RURAL has been denied the opp

seek review on any issue. Further, given the fact that WDNR as

brief on appeal that it fully responded to and considered all 

received during the comment period, WDNR Response at 20–

be that a remand on this basis will not result in any change i

permit determination. Nevertheless, in order to ensure that 

issuer complies with the requirement to give adequate and tim

eration to public comments, we believe a remand is appropri

issue. The Clean Air Act states that the PSD provisions of the 

designed “to assure that any decision to permit increased air 

* * * is made only after consideration of all the consequences 

decision and after adequate procedural opportunities for inform

participation in the decisionmaking process.” CAA § 160(5), 

§ 7470(5). The failure of WDNR to comply fully with the public 

tion requirements of the regulations implementing this statuto

ment, combined with a reasonable perception from the record t

may not in fact have given consideration to the public’s comme

hand, undermines the statutory objective and should be rectifie

Accordingly, on remand, WDNR must reconsider its decisi

of the comments received, issue a revised response to comm

ment responding to all significant comments submitted during 

ment period, and serve this document on all persons who subm

ten comments or filed an appearance slip at the public hearing

son who participated during the public comment period will 
ing the comment period in accordance with the requirements of 40 C.F

part 124.25 The Board will not, however, entertain petitions seek

review of issues otherwise disposed of by this decision.

III. CONCLUSION

The permit is remanded to WDNR. On remand, WDNR mu

(1) revise the language of permit condition I.C.8.a.(2)(b) to accurat

reflect the applicable regulatory language; (2) reconsider and revise p

mit condition I.C.12 and, unless the revision merely strikes I.C.12 fr

the permit, provide the public with an opportunity to submit comme

on the revision and seek review by the Board in accordance w

40 C.F.R. part 124; and (3) reconsider its permit decision in light of 

comments received, issue a revised response to comments docum

responding to all significant comments submitted during the comm

period, and serve this document on all persons who submitted writ

comments or filed an appearance slip at the public hearing.26 On all ot

issues raised in the amended petition, review is denied.

So ordered.

VOLUME 8

25 Although this may result in parties other than RURAL seeking Board review a

WDNR issues a revised response to comments document, given the importance of th

procedures we believe that such a result is justified.

26 Although 40 C.F.R. § 124.19 contemplates that additional briefing typically will 

submitted upon a grant of review, a direct remand without additional submissions is app

priate where, as here, it does not appear as though further briefs on appeal would s

light on the issues to be addressed on remand. See In re Knauf Fiber Glass, GmbH, 8 E.A

121, 176 (EAB 1999).