P.1 

OAR Box 1781 

Prepped by Ollie Stewart 

Document Number: 

54) ll-K-11 

Docket Number: 

A-90-37 

Printed 10/29/2008 10:46:20 AM Sheet 54 of 142 
P.2 

.J 

BEFORE THE ADMINISTRATOR 

U.S. ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. \i 

ft 

In the Matter of: 

Columbia Gulf Transmission Company 

ID No. 105-0640-0021 

Applicant 

if i 

i 

PSD Appeal No. 88-11*^"—"—? 

tf-zc-il 

ORDER ON MOTION FOR STAY 

Before me is a motion filed by the permit applicant, 

Columbia Gulf Transmission Company, and the permit issuer, the 

State of Kentucky, which are jointly requesting a stay of the 

proceedings on EPA Region IV's appeal from the State's permit 

determination.

 y If a stay is granted, the applicant intends to 

supplement the state administrative record with new factual 

information which the applicant believes will confirm the wisdom 

of the State's original permit determination. The information 

concerns site-specific costs relevant to the State's 

determination of "best available control technology" (BACT) for 

the. proposed facility. This information was not in the 

administrative record of the original BACT analysis of the 

y

 Currently, an order granting review of the State's permit 

determination has been issued. Columbia Gulf Transmission 

Company, PSD Appeal No. 88-11 (Order dated June 21, 1989). The 

order specifies that the briefing period will commence upon the 

State's publication of the Agency's decision granting review of 

the State's permit determination. The State has yet to give the 

required notice that triggers commencement of the briefing 

period. 
P.3 

2

 ' * r 

facility, a fact which prompted EPA Region IV to file its appeal 

of the permit determination alleging, inter alia, that evidence 

of these costs would be needed to support the State's BACT 

determination. In their motion, the State and the permit 

applicant express the belief that staying the proceedings would 

be the most expeditious means of disposing of this case; they 

claim that a remand, for example, would not be desireable because 

it might trigger an entirely new and, presumably, time-consuming 

public review and comment period under 40 CFR §124.19. The 

proposed stay mechanism, on the other hand, would circumvent this 

process, but only if the State determines, after evaluating the 

new information, that the original permit determination was 

correct (and therefore does not require change). The stay, as 

proposed, would restrict opportunity to comment on the new 

information to the Region, which was the only commenter on the 

original permit determination. The movants reason that there is 

no logical basis for soliciting comment from the public since it 

previously had the opportunity — but did not exercise it — to 

comment on precisely the same permit conditions. (The movants 

appear to concede the necessity, however, of soliciting comment 

from a broader audience if the State's review produces a 

substantially revised permit.) 

In opposing the motion, the Region makes several arguments. 

First, it argues that the administrative record is already closed 

and the applicant should not now be permitted to submit 

information it should have submitted l^j years ago when Kentucky 
P.4 

3 

was in the process of developing the draft permit determination. 

According to the Region, 

(t]he Applicant has failed to explain its failure to 

provide this information on a timely basis. Applicant's 

allegation that Kentucky did not require such information, 

even if accurate, is no justification for this omission, 

especially in light of the timely comments from Petitioner 

[Region IV] that a detailed, source-specific analysis was 

reguired. Applicant responded to the Region's comments by a 

letter dated August 12, 1988, but still failed to provide 

the necessary, information. Consequently, at this late date 

such information should not be included in the record put 

before the Administrator for review. 

Region's Response at 2. 

This argument is not cause for denial of the motion. It is 

true the regulations contemplate a permit decision being made on 

the basis of the administrative record as it exists at the close 

of the comment period on the draft permit, see, e.g.. 40 CFR 

§124.18(b)(1); and it is also true the permit applicant's 

additional information may have been in existence or readily 

available on or before that date (thus seeming to eliminate most 

legitimate excuses for not submitting the information earlier). 

Nevertheless, it does not appear to me that the regulations are 

inflexible in this respect, & or that any prejudice would result 

from granting the motion (the Region, for example, does not claim 

v

 It is well settled that an administrative agency must follow 

procedures set forth in its own regulations. E.g., United States 

ex rel Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499 (1954); 

Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152 (1959). Of 

course, if no prejudice results or if some greater interest is 

served, an exception to this requirement may be permitted. 

Taylor v. Maryland School for the Blind, 409 F. Supp. 148 (D.Md. 

1976), aff'd 542 F.2d 1169 (4th Cir. 1976); see American Farm 

Lines v. Black Ball Freight Service, 397 U.S. 532, 539, 90 S.Ct. 

1288, 1292, 25 L.Ed.2d 547, 553 (1970). 
P.5 

4 '* 

it will suffer any). Insofar as the possibility of prejudice to 

the public is concerned, it will not incur any because, under the 

movants' proposal, the public is given the right to comment if 

the permit is subsequently revised; and, if it is not revised, 

further public participation would be unnecessary since, as the 

movants correctly point out, the public has already had an 

opportunity to comment on the terms of the unrevised permit.

 2/ 

In my opinion, if the State is willing to reopen the record 

to accept and review additional information, it should be the one 

to decide the matter in the absence of any prejudice to third 

parties. The purpose of closing the record to receipt of 

additional evidence is presumably to bring order to the decisionmaking process, enabling permit issuers such as the State to 

11 The Region is guilty of overgeneralizing when it asserts that 

"no information should be reviewed by the Administrator which has 

not first been made available to the public for review and 

comment." Region Response to Motion at 3. The ultimate purpose 

of public comment is to determine whether the conditions of the 

permit should be changed. See, e.g., 40 CFR §124.13 (duty to 

raise issues pertaining to whether the "any condition of a draft 

permit is inappropriate"); 40 CFR §124.14 (reopened public 

comment period allows comments to be filed on "conditions" of the 

draft permit that are inappropriate); 40 CFR §124.19 (appeals are 

for review of permit "conditions"). Nothing in the statute, 

e.g. , Clean Air Act §165(a)(2), 42 U.S.C.A. ,§7465(a) (2) , or the 

regulations, e.g.. 40 CFR §52.21(q), can reasonably be read as 

mandating solicitation of public comment on information qua 

information. Therefore, if, as is possible under the movants' 

proposal, the new information might not prompt any alteration of 

the permit conditions, no legitimate purpose would be served by 

soliciting public comment on the new information. The general 

public has already had an opportunity to comment on the permit's 

conditions. Further solicitation of public comment under these 

circumstances would be redundant. It suffices that the Region, 

as the sole petitioner contesting the terms and conditions of the 

permit, will have an opportunity to comment on the information. 
P.6 

T 5 

manage their dockets efficiently and to bring finality to permit 

proceedings. In this manner, the permit issuer can avoid 

potentially endless rounds of delays and reconsideration of 

matters previously decided. Thus, so long as the permit issuer 

is willing to countenance the disruptions attendant to reopening 

the record, there is no apparent reason why the record has to be 

kept closed. I conclude therefore that this matter is 

principally one for the State to decide. 

In opposing the motion, the Region also suggests that it 

should have the opportunity to submit new information on the 

appropriate level of control currently representing BACT for the 

applicant's turbine. The Region explains that in reviewing the 

PSD permit application, it tolled its assessment of available 

control technologies for BACT at the time the public comment 

period closed. ^ It therefore argues that if the record is 

subsequently reopened to admit new information supplied by the 

applicant, then the State must also "consider anew" what 

technology represents BACT. Region Response at 4. I agree, 

although "consider anew" perhaps exaggerates the State's 

obligation (better to say: the State will have to update its BACT 

-' As explained in a previous decision, 

Absent unusual delay between the close of the public 

comment piiiod and the date of permit issuance, or the 

presence of other extraordinary circumstances, the close of 

the public comment period can be used as the reference by 

which the adequacy of the administrative record is judged. 

Pennsauken County Resource Recovery Facility, PSD Appeal No. 

88-8, at 7, n. 11 (November 10, 1988). 
P.7 

6 

determination after giving full consideration to the information 

submitted by both the applicant and the Region). The need to 

base the permit determination on current information is 

fundamental to any determination of "best available control 

technology," for old technologies are constantly being replaced 

by newer and more advanced ones; and in the absence of overriding 

considerations —. for example, those bearing on the orderly 

administration of the permit program — information on the latest 

available technologies should ordinarily receive consideration.

 i; Therefore, whenever the original permit application is 

being updated at the behest of the permit applicant, it is only 

fair that the applicant's new information be balanced with other 

contemporaneous information relevant to the BACT determination. 

: Accordingly, the parties' motion is granted, with the 

proviso that the State shall not only give the Region an 

opportunity to comment on the applicant's new information, but 

shall also permit the Region to submit additional information of 

its own to ensure that the BACT determination is fully 

-' Appropriate allowances for delays inherent in issuing a 

permit are nevertheless necessary since, for example, there will 

always be some measure of delay between the close of the 

administrative record and the time when the final permit is 

actually issued. To this end, the Agency ordinarily considers 

the close of the public comment period on the draft permit as 

tolling the time for consideration of new technologies. See note 

4 supra. 
P.8 

~ 7 

contemporaneous with the State's updating of the permit 

determination. 

So ordered. 

Dated: JUL 3 1990 

'iL^-.^-

William K. ^Aly^ / 

Administrator 
P.9 

CERTIFICATE 07 SERVICE ** """ •*-. 

I hereby certify that copies of the foregoing Order on 

Motion for Stay in the matter of Columbia Gulf Transmission 

Company, PSD Appeal No. 88-11, were sent by First Class Mail to 

the following persons: 

William C. Eddins, Director 

Division for Air Quality 

Commonwealth of Kentucky 

Dep't. for Environmental Protection 

18 Reilly Road 

Frankfort, KY 40601 

Susan Midyett 

Columbia Gulf Transmission Company 

3805 West Alabama Avenue 

Houston, TX 

Richard D. Baley 

Manager of Design Engineering 

Columbia Gulf Transmission Company 

3805 West Alabama Avenue 

Houston, TX 

Daniel Ransbottom 

Senior Consultant 

Entrix, Inc. 

P. O. Box 56288 

Houston, TX 77256-6288 

Michael H. Levin 

Nixon, Hargrave, Devans and Doyle 

One Thomas Circle 

Washington, DC 20005 

Alan E. Dion 

Assistant Regional Counsel 

U. S. EPA, Region IV 

345 Courtland Street, NE 

Atlanta, GA 30365 

Bruce P. Miller, Director 

Air Programs Branch 

U. S. EPA, Region IV 

345 Courtland Street, NE 

Atlanta, GA 303 65 

Dated: JUL - 9 1390 ISfhi. tLA.^\ ^ 

Brenda H. Selden, Secretary 

to the Chief Judicial Officer