Georgia Department of Natural Resources

Environmental Protection Division  Air Protection Branch

4244 International Parkway  Suite 120  Atlanta  Georgia 30354

404/363-7000  Fax: 404/363-7100

Mark Williams, Commissioner

F. Allen Barnes, Director

Shirley Rivera (AIR-3)

E-mail: R9airpermits@epa.gov 

U.S. EPA Region 9 

75 Hawthorne Street 

San Francisco, CA 94105-3901

RE: AVENAL ENERGY PROJECT

Dear Ms. Rivera:

The Air Protection Branch of Georgia Environmental Protection Division appreciates the 

opportunity to provide the following comments on the proposed action and

Supplemental Statement of Basis relating to the Prevention of Significant Deterioration 

(PSD) permit application for the Avenal Energy Project (Avenal). We would normally 

not comment on a proposed permit for a project far away from our state, however, EPA 

has clearly indicated that this situation is precedent setting for how it intends to treat 

other “similarly situated” sources and that may directly affect our state.

Background

Avenal submitted a permit application that EPA found to be complete on March 19, 

2008. Section 165(c) of the CAA requires EPA to render a final decision on Avenal's

permit within one year of filing a completed permit application. More than three years 

later, EPA has yet to render a final decision on Avenal’s permit.

In a court declaration of Assistant Administrator Gina McCarthy on January 31, 2011, in 

paragraph 5, Ms. McCarthy stated:

“In a prior declaration, I testified that applicants seeking PSD permits to construct 

stationary source of air pollution have experienced unforeseen challenges with 

the preparation and review of information to predict the impact of proposed 

sources on hourly NO2 concentrations. This gave rise to an EPA policy review 

that has now proceeded to the point that the agency can more specifically 

explain how it intends to move forward with action on the PSD permit application 

submitted by Avenal Power Center.”

Paragraph 6 begins as follows:

“As part of this policy review, EPA has determined that it is appropriate, under 

certain narrow circumstances, to grandfather certain PSD applications from the 

requirement to demonstrate that the proposed facility will not cause or contribute 
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to a violation of the hourly NO2 standard. In addition, EPA believes the factors 

that justify such an approach for the hourly NO2 standard also provide a basis 

not to subject these same permit applications to additional permitting 

requirements that have taken effect during the period of time these permit 

applications have been pending...”

Later in paragraph 6, it states:

“EPA will propose to extend similar relief to other permit applicants that can show 

they are similarly situated.”

Then, in March 2011, EPA proposed the specific action that is the subject of these 

comments. With regard to Avenal, the proposal was very similar to Ms. McCarthy’s 

declaration. Gone, however, was the mention of any further progress on the policy 

review or how other similarly situated sources would be identified and handled. 

Specifically, EPA stated:

EPA has found that applicants seeking PSD permits to construct stationary 

sources of air pollution have experienced unforeseen challenges with the 

preparation and review of information to predict the impact of proposed sources 

on hourly NO2 concentrations. As a result of concerns about these challenges 

expressed by permit applicants, EPA began a policy review to determine whether 

additional action by EPA was necessary to facilitate the preparation of 

information to predict hourly NO2 concentrations and to enable EPA and other 

permitting authorities to complete action on pending PSD permit applications in a 

timely manner.

As part of this policy review, and in light of EPA’s statutory obligation under 

Clean Air Act section 165(c) to grant or deny a complete PSD permit application 

within one year, and other circumstances present in this case, EPA has 

determined that it is appropriate to grandfather the PSD permit application from 

APC from the requirement to demonstrate that the proposed facility will not cause 

or contribute to a violation of the hourly NO2 standard. Accordingly, EPA 

proposes to approve APC’s PSD permit application for the Project without 

requiring a demonstration that the source will not cause or contribute to a 

violation of the hourly NO2 standard. In addition, EPA believes the factors that 

justify such an approach for the hourly NO2 standard also provide a basis not to 

subject this permit application to additional permitting requirements that have 

taken effect following the promulgation of the hourly NO2 NAAQS. Therefore, 

EPA also will not require the source to meet emissions limitations for greenhouse 

gases or to demonstrate that it will not cause or contribute to a violation of the 

NAAQS for hourly concentrations of sulfur dioxide.
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Grandfathering

We support reasonable grandfathering provisions, as are being proposed in this case,

to allow for smooth transitions to new requirements in the new source review permitting 

program.

It is extremely unlikely that this type of transition would result in any environmental 

degradation over instant enforcement of a newly promulgated NAAQS. The reason is 

that a project already has to demonstrate that it will 1) comply with all existing NAAQS 

and PSD increments; 2) protect air quality related values in Class I areas; 3) include the 

Best Available Control Technology (BACT) for all NSR regulated pollutants emitted in 

significant amounts; and 4) comply with other new source review requirements including 

impacts to soils and vegetation.

In addition, the Clean Air Act provides for compliance with all NAAQS by other 

mechanisms in addition to the new source review permitting program. Just because a 

particular new source may be grandfathered from an element in the new source review 

permitting program during a transition period, does not mean that a violation of the 

NAAQS will result. In fact, Section 107(a) of the Clean Air Act requires states to 

demonstrate compliance with all NAAQS within the entire geographic area comprising 

such State by submitting an implementation plan which will specify the manner in which 

national primary and secondary ambient air quality standards will be achieved and 

maintained.

Rules vs. Guidance

Upon the promulgation of a new, or revised, NAAQS, EPA and the states need a 

reasonable amount of time to update their rules so everyone knows what the 

requirements are and can plan for them. EPA routinely issues guidance in these 

circumstances however, as is the case here for NO2, guidance is not a substitute for 

rules. Guidance should only be used to further explain or clarify what the rules already 

require. EPA’s use of guidance denies states, and other affected entities, from the 

opportunity to provide input on the effective implementation of Clean Air Act 

requirements.

States have repeatedly requested that EPA coordinate the NAAQS implementation 

rules with the setting of the final NAAQS1. And, even EPA has begun to recognize the 

importance of timely rulemaking coordinated with the promulgation of a new or revised 

NAAQS. In a memo to the “SIP Zero Team” dated March 25, 2010, Assistant 

Administrator Gina McCarthy states, “EPA Headquarters plans to issue implementation 

 

1 Georgia EPD made the following comment in our comments dated March 22, 2010 to the reconsidered 2008 ozone 

NAAQS: “Delays in promulgation of the implementation rule results in uncertainty on the part of the states, regulated 

sources, and the public. This uncertainty leads to wasted effort on the part of states that are forced to implement the 

NAAQS without knowing what regulatory path to follow. It also leads to delays in emission reductions, which is the 

key element needed for protection of public health and the environment.”
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rules and related guidance with NAAQS promulgation or as promptly thereafter as 

possible.”

However, since EPA finalized a revised ozone NAAQS in March 2008, a revised 

nitrogen dioxide NAAQS in January 2010, and a revised sulfur dioxide NAAQS in June 

2010, as of April 2011 EPA has yet to even propose a single implementation rule for 

any of these NAAQS in the federal register. As such, states have had no opportunity to 

provide input on the implementation of any of these new NAAQS.

Equal Treatment to States

This proposal seeks to grandfather one source where EPA is the permitting authority. 

However, EPA has failed to notify states of how it intends to treat other similarly situated 

sources. In the meantime, the states, and those sources, are struggling with the 

implementation of these newly revised NAAQS, with no proposed or final 

implementation rules in sight. As it currently stands, EPA is exempting itself from the 

very requirements that it is forcing everyone else to follow. EPA must give states the 

opportunity, if necessary, to grandfather similarly situated sources.

We thank you for the opportunity to comment on this matter. If there are any questions 

about these comments, please contact me at 404-363-7016 or james.capp@gaepd.org.

Sincerely,

James A. Capp

Chief, Air Protection Branch

Georgia Environmental Protection Division