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###### Environmental Protection Agency

          - [FRL-7960-7] 

# AGENCY:

United States Environmental Protection Agency (EPA).

# ACTION:

Notice of final action.

# SUMMARY:

This document announces that on May 26, 2005, the Environmental Appeals Board (“EAB”) of EPA denied review of a petition for review of a Prevention of Significant Deterioration (“PSD”) permit amendment (“Permit Amendment”) that EPA, Region 10 and the State of Washington's Energy Facility Site Evaluation Council (“EFSEC”) issued to Sumas Energy 2, Inc. (“SE2”). The Permit Amendment extends the original PSD permit (“Original Permit”) issued to SE2 for construction and operation of the SE2 electric generating facility (“Facility”). The Permit Amendment was issued pursuant to 40 CFR 52.21.

# DATES:

The effective date of the EAB's decision is May 26, 2005. Judicial review of this permit decision, to the extent it is available pursuant to section 307(b)(1) of the Clean Air Act (“CAA”), may be sought by filing a petition for review in the United States Court of Appeals for the Ninth Circuit within 60 days of August 26, 2005.

# ADDRESSES:

The documents relevant to the above action are available for public inspection during normal business hours at the following address: EPA Region 10, 1200 Sixth Avenue (AWT-107), Seattle, Washington 98101. To arrange viewing of these documents, call Pat Nair at (208) 378-5754.

# FOR FURTHER INFORMATION CONTACT:

Pat Nair, EPA Region 10, Idaho Operations Office, Office of Air, Waste and Toxics, 1435 North Orchard Street, Boise, ID 83706.

# SUPPLEMENTARY INFORMATION:

This supplemental information is organized as follows: 

A. What Action Is EPA Taking?

B. What Is the Background Information?

C. What Did the EAB Decide?
      ( print page 50326)    

## A. What Action Is EPA Taking?

We are notifying the public of a final decision by the EAB on the Permit Amendment issued by EPA Region 10 and EFSEC (“Permitting Authorities”) pursuant to 40 CFR 52.21.

## B. What Is the Background Information?

The Facility will be a  660-megawatt natural gas-fired combined cycle electric generation facility located in Sumas, Washington, about one-half mile south of the Canadian border. The Facility will combust only natural gas and will employ selective catalytic reduction (“SCR”) and catalytic oxidation technology.

Both the Province of British Columbia (“Province”) and Environment Canada, Canada's national environmental protection agency, filed petitions for review challenging the issuance of the Original Permit. On September 6, 2002, the Permitting Authorities jointly issued the Original Permit to SE2 pursuant to section 165 of the CAA, 42 U.S.C. 7475, 40 CFR 52.21, and the terms and conditions of EFSEC's delegation of authority from EPA Region 10 under 40 CFR 52.21(u).

On March 25, 2003, the EAB issued an order that denied the petitions for review in part and remanded in part to correct a typographical error that was inadvertently retained from the draft permit. The Original Permit subsequently became effective on April 17, 2003 and remained in effect until October 17, 2004.  

On June 1, 2004, SE2 applied to the EFSEC for an extension of the Original Permit. On January 11, 2005, after providing an opportunity for public comments and holding a public hearing, EFSEC approved the Permit Amendment. On January 21, 2005, EPA approved the Permit Amendment. The Permit Amendment authorizes an 18-month extension of the Original Permit.

Subsequent to issuance of the Permit Amendment, the Province petitioned the EAB for review of the Permit Amendment.

## C. What Did the EAB Decide?

                    The Province raised five main issues in its petition for review: (1) SE2's application for permit extension was untimely; (2) SE2's application lacked the required construction schedule; (3) the best available control technology (“BACT”) re-analysis for startup and shutdown emissions was incomplete; (4) the BACT analysis for nitrogen oxide (“NOX                    ”) emissions was inadequate; and (5) the Permit Amendment should not have been granted for an 18-month period.                

                    The EAB denied review of the Province's petition for review in its entirety. First, the EAB concluded that the Permitting Authorities did not err in concluding that SE2's permit extension application was filed in a timely manner. Specifically, the EAB found that SE2 was not required to submit the permit extension application six months before expiration of the Original Permit. Second, the EAB found that the Province failed to demonstrate that the Permitting Authorities clearly erred in determining that SE2 provided a construction schedule in its application. Third, the EAB determined that the Permitting Authorities conducted a complete BACT re-analysis for startup and shutdown emissions by reviewing the Original Permit BACT  analysis for these emissions and concluding that there was no new information that would warrant any changes to the analysis. Moreover, the EAB concluded that the Province failed to demonstrate why the Permitting Authorities' BACT analysis for NOX                     emissions was in error. Finally, the EAB found that the Permitting Authorities had discretion to grant an 18-month extension of the Original Permit and the Provice failed to show why the  Permitting Authorities' decision to grant an 18-month extension was in clear error. For these reasons, the EAB denied the Province's petition for review of the Permit Amendment in its entirety.                

                    Pursuant to 40 CFR 124.19(f)(1), for purposes of judicial review, final agency action occurs when a final PSD permit decision is issued and agency review procedures are exhausted. This notice is being published pursuant to 40 CFR 124.19(f)(2), which requires notice of any final agency action regarding a PSD permit to be published in the                     **Federal Register**                    . This notice constitutes notice of the final agency action denying review of the Permit Amendment and consequently, notice of the Permitting Authorities' issuance of PSD Permit No. EFSEC/2001-02 Amendment 1 to SE2. If available, judicial review of these determinations under section 307(b)(1) of the CAA may be sought by filing of a petition for review in the United States Court of  Appeals for the Ninth Circuit, within 60 days from the date on which this notice is published in the                     **Federal Register**                    . Under section 307(b)(2) of the Clean Air Act, this determination shall not be subject to later judicial review in any civil or criminal proceedings for enforcement.                

Dated: August 1, 2005.

Ronald A. Kreizenbeck,

Acting Regional Administrator, Region 10.

[FR Doc. 05-17029  Filed 8-25-05; 8:45 am]

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