UtiliCorp United, Inc.

Read the official release (epa.gov)

Plain-English summary

UtiliCorp United operated a coal-fired power plant in Sibley, Missouri, with three units sharing a common stack. Unit 3 was subject to a nitrogen oxide emissions limit, and UtiliCorp proposed using an apportionment method to show that Unit 3 complied. The Environmental Appeals Board held that the company could not use that substitute method without prior written approval from EPA. The Board also denied UtiliCorp's requests for a stay and an evidentiary hearing, and denied review of the Acid Rain Division's decision on Petition No. 99-3. The order did not decide the remaining merits of UtiliCorp's first petition.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 7651, 7651f(b)(2), and 7651k(a); 40 C.F.R. §§ 75.5, 75.17, 75.66, 76.6, and 78.3, 78.6, 78.8, and 78.12.
• Outcome: Petitions consolidated, interim relief and a stay denied, Petition No. 99-3 review denied, and the proposed substitute apportionment method barred absent prior written EPA approval.
• Key point: Filing an appeal did not create written EPA approval for an alternative monitoring method.

Full text (EPA EAB public release)

         BEFORE THE ENVIRONMENTAL APPEALS BOARD
     UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                    WASHINGTON, D.C.


                           )

In re: )
)
UtiliCorp United, Inc., ) CAA Appeal Nos. 99-2
) & 99-3
)

       ORDER CONSOLIDATING PETITIONS FOR REVIEW,
        DENYING REQUEST FOR INTERIM RELIEF, AND
          DENYING REVIEW OF PETITION NO. 99-3

On November 16, 1999, UtiliCorp United, Inc. ("UCU")

filed a petition for review of a decision by EPA’s Office of

Air and Radiation, Acid Rain Division, dated October 15, 1999

(the "October Decision"). The October Decision denied UCU’s

petition for approval of a plan for apportionment of the

nitrogen oxide emissions from a common stack at UCU’s facility

located at Sibley, Missouri (the "Sibley Facility"). UCU’s

petition sets forth the relief requested by UCU in three

numbered paragraphs, the last of which ("Relief Request No.3")

raises issues regarding UCU’s obligations under 40 C.F.R.

§ 75.17(a)(2)(iii) during the pendency of this appeal.

 On December 17, 1999, UCU filed a petition for review of

a second decision issued by EPA’s Office of Air and Radiation,

Acid Rain Division, which was dated November 19, 1999 (the

"November Decision"). The November Decision denied UCU’s

request, which UCU had submitted to EPA’s Acid Rain Division

on November 10, 1999, for a stay of the same regulatory
 2

provision that is the subject of UCU’s Request No. 3 of its

first petition for review. Both requests relate to the same

factual circumstances and request substantially similar relief

(although set in a different procedural posture). UCU’s

petition for review of the October Decision and its request

for review of the November Decision are hereby consolidated

for the purposes of consideration and decision by this Board.

A joint proceeding on the issues discussed in this order is in

the interest of justice, and consolidation will not prejudice

any party. 40 C.F.R. § 78.8(a).

                     I.    BACKGROUND

A. Statutory and Regulatory Background

 This matter arises under Title IV of the Clean Air Act

("CAA"), 42 U.S.C. §§ 7651 - 7651o. The purpose of Title IV

is to reduce the adverse impacts of depositions from the

atmosphere of acidic compounds through reductions in annual

emissions of sulfur dioxide ("SO 2") and nitrogen oxides

("NOX"). 42 U.S.C. § 7651.

 Among other things, Title IV requires owners and

operators of either SO 2 or NOX emission sources to comply with

certain monitoring, reporting, and record keeping

requirements. In particular, the statute provides as

follows:
 3

The owner and operator of any source subject to this
subchapter shall be required to install and operate
[a continuous emissions monitoring system ("CEMS")]
on each affected unit at the source, and to quality
assure the data for sulfur dioxide, nitrogen oxides,
opacity and volumetric flow at each unit. The
Administrator shall, by regulations * * * specify
the requirements for CEMS, for any alternative
monitoring system that is demonstrated as providing
information with the same precision, reliability,
accessibility, and timeliness as that provided by
CEMS, and for recordkeeping and reporting of
information from such systems.

42 U.S.C. § 7651k(a).

EPA’s regulations governing implementation of CEMS, or

continuous emission monitoring systems, are contained in 40

C.F.R. part 75. At issue in this case is the CEMS regulation

for monitoring NOX emissions where affected units with acid

rain NOX emission limits and affected units without such

limits1 emit through a common stack at the source. See 40

C.F.R. § 75.17(a)(2)(iii). That regulation provides that the

owner or operator of such a source must both "[i]nstall,

certify, operate, and maintain a NO X continuous emission

monitoring system in the common stack" and

the owner or operator shall either:
  (A) Install, certify, operate, and maintain NO X and
diluent monitors in the ducts from the affected
units; or
  (B) Develop, demonstrate, and provide information
satisfactory to the Administrator on methods for
apportioning the combined NO X emission rate (in


1
 See infra, Part I.B (discussing the emission limit at

issue in this case).
 4

 lb/mmBtu) measured in the common stack on each of
 the units. The Administrator may approve such
 demonstrated substitute methods for apportioning the
 combined NOX emission rate measured in a common stack
 whenever the demonstration ensures complete and
 accurate estimation of all emissions regulated under
 this part.

40 C.F.R. § 75.17(a)(iii).

B. Factual Background

 UCU owns and operates the Sibley Facility, which is a

500-megawatt coal-fired power plant consisting of three

cyclone units that discharge emissions through a common stack.

UCU’s Petition for Review of EPA’s Final Decision Under 40

C.F.R. Part 75 [hereinafter, "First Petition"] at 2. Unit 3

is required, pursuant to 40 C.F.R. § 76.6(a)(2), to meet an

annual NOX emission limitation of 0.86 lb/mmBtu starting

January 1, 2000 [hereinafter, "0.86 lb/mmBtu Limitation"].

First Petition at 2. Units 1 and 2, however, are exempt from

the 0.86 lb/mmBtu Limitation. Id.

 The Facility presently has a CEMS installed in the common

stack through which emissions from all three units are

discharged. Id. However, UCU does not have a monitoring

system that enables it to segregate NO X emissions of unit 3,

which is subject to the 0.86 lb/mmBtu Limitation, from the

emissions of units 1 and 2, which are not subject to that

limitation. Id. at 3. In anticipation of the need to

demonstrate unit 3's compliance with the 0.86 lb/mmBtu
 5

Limitation beginning on January 1, 2000, UCU submitted to EPA

Region VII’s Air Permitting & Compliance Branch a request for

approval, pursuant to 40 C.F.R. § 75.17, of a proposed method

for apportioning the combined NO X emissions as measured in the

common stack. See Letter from Jeremy Morgan, Environmental

Manager of UCU, to Donald Toensing, Chief EPA Region VII Air

Permitting and Compliance Branch (Sept. 3, 1998) [hereinafter,

"Request Letter"]. During the course of communications

between UCU, Region VII’s Air Permitting and Compliance Branch

[hereinafter, "Region VII"], and EPA’s Office of Air and

Radiation, Acid Rain Division [hereinafter, "Acid Rain

Division"], UCU modified its request in several respects.

Thereafter, the Acid Rain Division issued the October Decision

denying UCU’s Request Letter, as modified. See Letter from

Brian J. McLean, Director Acid Rain Division to Glenn Keefe,

representative of UCU (Oct. 15, 1999).

UCU has now filed its First Petition seeking review of

the October Decision. The First Petition requests both

interim relief pending the Board’s decision on the merits of

the First Petition and that this Board review the October

Decision and in connection with that review grant UCU an

evidentiary hearing. Pursuant to an order of this Board dated

December 1, 1999, the Acid Rain Division has filed, on an

expedited basis, its response to UCU’s request for interim
 6

relief, which it opposes. See Response of EPA Office of Air

and Radiation in Opposition to Petitioner’s Request for a Stay

(Dec. 15, 1999) [hereinafter, "Response"]. 2 In its Response,

the Office of Air and Radiation ["OAR"] apprised the Board

that OAR’s Acid Rain Division had received on November 10,

1999, and denied on November 19, 1999, a separate request by

UCU for the Acid Rain Division to stay the requirement set

forth in 40 C.F.R. § 75.17(a)(2)(iii) as it pertains to

unit 3. OAR noted that this denial was appealable to the

Board; by its Second Petition, UCU subsequently appealed the

November Decision.

This Order addresses UCU’s Second Petition and its

request for interim relief as set forth in Request No. 3 of

the First Petition. This Order does not address or reflect

any opinion of the Board relative to the merits of the First

Petition with respect to relief other than that set forth in

Request No. 3.

                    II.    DISCUSSION

UCU requests that the Board hold that the October

Decision is inoperative pending the Board’s disposition of the

First Petition and that UCU may proceed with its proposed

2
 The Board’s December 1, 1999 order did not require an

expedited response on UCU’s other relief requests and the Acid
Rain Division stated that it intends to file its complete
response to the First Petition on or before January 5, 2000.
Response at 1.
 7

apportionment plan or, alternatively, that the Board issue a

stay pending the duration of the appeal. OAR’s Response

raises several noteworthy objections in response. First, OAR

argues that any stay of the October Decision that occurred

automatically upon UCU’s filing of its First Petition cannot

serve to authorize UCU to proceed with its proposed

apportionment plan to demonstrate unit 3's compliance with the

0.86 lb/mmBtu Limitation. Second, it argues that the request

for a stay is not properly before the Board insofar as it is

raised in Request No. 3. OAR does acknowledge that this Board

has jurisdiction to consider UCU’s

Second Petition, which has now been timely filed. OAR further

argues that the Board should affirm the Acid Rain Division’s

November Decision denying the request for stay because that

decision was appropriately rendered and because a denial of a

stay will not harm UCU.

For the following reasons, the Board holds (1) that UCU

may not use its unapproved apportionment plan to demonstrate

unit 3's compliance with the 0.86 lb/mmBtu Limitation pending

a determination of the merits of UCU’s petition for review of

the October Decision, and (2) that UCU has failed to make a

sufficient showing to warrant a stay.
 8

A. UCU Does Not Have Approval From the Administrator to Use
Its Proposed Apportionment Plan to Demonstrate Compliance

   With respect to UCU’s request that we hold that the

October Decision is inoperative and that UCU may proceed with

the proposed apportionment method during the pendency of this

appeal, UCU states its contention as follows:

 EPA’s October 15, 1999 final decision is inoperative
 once a timely petition for administrative appeal is
 filed. 62 Fed. Reg. 55,473 (Oct. 24, 1997). Since
 UCU filed its Petition for Review within the 30 day
 appeals period provided by 40 C.F.R. § 78.3, EPA’s
 decision denying UCU’s proposed apportionment method
 is stayed until resolution of this appeal, and UCU
 may proceed with its proposed apportionment plan to
 demonstrate Unit 3's compliance with the NO X emission
 limitation.

First Petition at 15-16. This argument must be rejected.

 The regulations provide that UCU may use its proposed

apportionment plan only if UCU has obtained prior written

approval of the plan from the Administrator. This conclusion

flows first from section 75.17(a)(2)(iii)(B), which states

that the owner or operator shall "provide information

satisfactory to the Administrator on methods for apportioning

the combined NOX emission rate (in lb/mmBtu) measured in the

common stack" and that "[t]he Administrator may approve such

demonstrated substitute methods for apportioning the combined

NOX emission rate measured in a common stack whenever the

demonstration ensures complete and accurate estimation of all

emissions regulated under this part." 40 C.F.R.
 9

§ 75.17(a)(2)(iii)(B). The plain language of this regulation

provides that an apportionment method proposed under

subparagraph (B) is a "substitute method," that the

information regarding the substitute method must be

"satisfactory" to the Administrator, 3 and that the

Administrator may "approve" the substitute method only when it

meets the requirement of complete and accurate estimation of

all regulated emissions. It is only reasonable to interpret

this regulatory language as requiring the Administrator’s

prior approval of a substitute apportionment method proposed

under subparagraph (B) before that substitute apportionment

method may be used by the source owner or operator to satisfy

its monitoring and reporting obligations.

Furthermore, in reading together 40 C.F.R. §§ 75.5(c) and

75.66, which govern the procedures for requesting approval of

a substitute apportionment method and prohibit the use of

unapproved alternative methods, it becomes clear that the

prior approval of the alternative apportionment method must be

in writing. First, section 75.66(a) establishes the

requirements for requesting the Administrator’s approval. In

particular, it authorizes the designated representative for an

3
 The term "Administrator" is defined as "the Administrator

of the United States Environmental Protection Agency or the
Administrator’s duly authorized representative." 40 C.F.R.
§ 72.2.
 10

affected unit to submit petitions to the Administrator and it

states that "[a]ny petitions shall be submitted in accordance

with the requirements of this section." 40 C.F.R. § 75.66(a).

Paragraph (g) of that section, which is captioned "petitions

for emissions or heat input apportionments," states that

"[t]he designated representative of an affected unit shall

provide information to describe a method for emissions or heat

input apportionment under §§ 75.13, 75.16, 75.17 or appendix D

of this part" and further specifies the minimum requirements

of any such petition. 40 C.F.R. § 75.66. Thus, paragraphs

(a) and (g) of section 75.66 contemplate that the

Administrator’s approval of a "substitute" apportionment

method under section 75.17(a)(2)(iii)(B) be requested by means

of a petition under section 75.66. Finally, section 75.5(c)

expressly states that "[n]o owner or operator of an affected

unit shall use any alternative monitoring system, alternative

reference method, or any other alternative for the required

continuous emission monitoring system without having obtained

the Administrator’s prior written approval in accordance with

§§ 75.23, 75.48 and 75.66." 40 C.F.R. § 75.5(c) (emphasis

added).

In the present case, UCU has not obtained written

approval from the Administrator of a petition pursuant to

section 75.66 for approval of a "substitute" apportionment
 11

method under section 75.17(a)(2)(iii)(B). 4 Accordingly,

section 75.5(c) prohibits UCU from using that alternative

apportionment method until UCU has obtained prior written

approval of its proposal.

UCU’s only argument as to why it should not be subject to

these requirements is that "EPA’s October 15, 1999 final

decision is inoperative once a timely petition for

administrative appeal is filed." First Petition at 15, citing

62 Fed. Reg. 55,473 (Oct. 24, 1997). UCU is correct that the

1997 amendment to the regulations governing appeal procedures

for Title IV made decisions that have been appealed

automatically "inoperative" in all circumstances. See 62 Fed.

Reg. 55,460, 55,473 (Oct. 24, 1997). In making this change to

the regulations, EPA explained that a decision is "inoperative

once a timely petition for administrative appeal is filed[.]"

Id. at 55,473. Thus, UCU’s appeal of the October Decision

denying its apportionment plan prevented that denial from

immediately becoming a final agency action. However, UCU’s

unilateral action of filing the appeal did not turn the denial

into a written approval issued by the Administrator, even for

a period of limited duration. Instead, UCU’s request for

approval of its proposed apportionment method remains pending

4
 While UCU’s request for approval of a its proposed

apportionment method was not expressly filed under section
75.66, the Acid Rain Division treated it as such.
 12

and is subject to review by this Board under the standards and

procedures established by 40 C.F.R. part 78. Thus, UCU still

does not have written approval of any alternative or

substitute apportionment plan under section

75.17(a)(2)(iii)(B), and thus, at present, its only option for

demonstrating compliance with the 0.86 lb/mmBtu Limitation is

set forth in section 75.17(a)(2)(iii)(A), which does not

require the Administrator’s prior written approval for UCU to

select it as UCU’s method for demonstrating compliance.

For all of the foregoing reasons, the Board rejects UCU’s

contention that UCU may proceed with its proposed

apportionment plan to demonstrate Unit 3's compliance with the

NOX emission limitation without having obtained prior written

approval from the EPA.
 13

B. UCU’s Petitions Fail to Demonstrate a Basis for a Stay

 In its First Petition, UCU requested in a single sentence

that this Board alternatively grant "a stay, for the duration

of this appeal, of the requirement set forth in 40 C.F.R.

§ 75.17(a)(2)(iii) as it pertains to Sibley Unit 3." First

Petition at 16. This request was opposed by OAR on a number

of grounds, including that this Board allegedly does not have

jurisdiction to grant UCU’s request as set forth in its First

Petition. Response at 20-21. We do not need to resolve this

question in the present case because UCU has not provided any

evidence, affidavits, or other documentation to support its

request for a stay set forth in its First Petition.

Accordingly, assuming arguendo that the Board has authority to

issue the stay requested by UCU in Request No. 3 of its First

Petition, that request is denied. We note, however, that

UCU’s Second Petition presents a question of whether a

substantially similar stay should be issued and, because that

request for review of the Acid Rain Division’s denial of a

stay is properly before us, we will consider it next.

 By its Second Petition, UCU has requested, in particular,

that the Board review the Acid Rain Division’s November

Decision denying UCU’s request for a stay of "the requirement

set forth in 40 C.F.R. [§] 75.17(a)[(2)](iii) as it pertains

to Unit 3 at Utilicorp’s Sibley Generating Station until the
 14

later of October 1, 2000 or until six months after final

resolution of an appeal by Utilicorp." Letter from Sarah

Toevs Sullivan, counsel to UCU, to Brian McLean, Director,

Acid Rain Division (Nov. 10, 1999) at 2. UCU has requested

both that the Board grant review of the November Decision and

grant UCU an evidentiary hearing "in order to demonstrate that

EPA’s delay has caused UCU’s inability to meet the compliance

demonstration requirement without suffering irreparable harm

and that a stay, therefore, is a fair and equitable remedy."

Second Petition at 9.

The Board’s consideration of UCU’s Second Petition is

governed by the regulations set forth at 40 C.F.R. part 78.

Those regulations state that the Board shall apply the

following standard of review where, as is the case here, there

has not been an opportunity for public comment or to submit a

claim of error notification:

The Administrator shall have the burden of going
forward to show the rational basis for the decision.
The petitioner shall have the burden of persuasion
to show that a finding of fact or conclusion of law
underlying the decision is clearly erroneous or that
an exercise of discretion or policy determination
underlying the decision is arbitrary and capricious
or otherwise warrants review.

40 C.F.R. § 78.12(b). With respect to the question of whether

an evidentiary hearing should be granted, the part 78

regulations provide in relevant part as follows:
 15

The Environmental Appeals Board may grant a request
for an evidentiary hearing * * * if the
Environmental Appeals Board finds that there are
disputed issues of fact material to contested
portions of the decision and determines, in its
discretion, that an opportunity for direct- and
cross-examination of witnesses may be necessary in
order to resolve these factual issues.

40 C.F.R. § 78.6(b)(1).

1.   Insufficient Basis for Review

We find, in the present case, that the Acid Rain Division

has stated a rational basis for its decision and UCU has not

shown that a finding of fact or conclusion of law underlying

the decision is clearly erroneous or that an exercise of

discretion or policy determination underlying the decision is

arbitrary and capricious or otherwise warrants review. 40

C.F.R. § 78.12(b).

The Acid Rain Division’s November Decision stated two

independent grounds for denying UCU’s request for a stay. The

Acid Rain Division stated its first reason for denying the

stay request as follows:

[A]pproving such a stay request would be contrary to
the purposes of title IV and part 76 of the Acid
Rain regulations. Title IV and part 76 require that
Unit 3 meet an annual NO X emission limit of 0.86
lb/mmBtu starting January 1, 2000. 42 U.S.C.
[§] 7651f(b)(2); and 40 C.F.R. [§] 76.6(a)(2).
Section 76.6(b) requires UtiliCorp to determine Unit
3's NOX emission rate, and to comply with the unit’s
NOX emission limit, in accordance with the
requirements of part 75, e.g., § 75.17(a)(2)(iii).
Section 75.17(a)(2)(iii) requires the installation
of NOX concentration and diluent monitors at Unit 3
(and at Units 1 and 2) unless UtiliCorp submits an

16

 apportionment methodology that is approved by the
 Administrator as providing complete and accurate
 estimates of each unit’s NO X emission rate. * * *
 UtiliCorp failed to provide an apportionment
 methodology that the Administrator approved.
 Consequently, the only approach available for
 monitoring Unit 3's NO X emissions is the installation
 of NOX concentration and diluent monitors at Unit 3
 under § 75.17(a)(2)(iii)(A). Staying the
 requirements of [§] 75.17(a)(2)(iii) would result in
 there being no NOX monitoring requirement for Unit 3,
 and no way of implementing Unit 3's NO X emission
 limit, during the period January 1, 2000 through the
 end of such a stay. This would be contrary to the
 purposes of title IV and part 76, which impose a NO X
 emission limit starting January 1, 2000.

November Decision at 3-4. As discussed below, this reason is

sufficient to support the November Decision denying UCU’s stay

request, and, therefore, we do not need to consider the second

basis for the November Decision. 5

 First, the Acid Rain Division’s analysis quoted above

presents a rational basis for its decision. The first part of

this explanation simply notes the existence of the O.86

lb/mmBtu Limitation and the requirement of 40 C.F.R.

§ 75.17(a)(2)(iii)(B) that approval of a proposed substitute

apportionment methodology must be obtained before that

methodology may be used. These statements of the applicable

 5
 The second basis stated by the Acid Rain Division for its

November Decision was that the Acid Rain Division found
certain factual statements made by UCU relative to its ability
to comply with the monitoring requirement to be unsupported
and that UCU had not "shown that it undertook any steps to
meet the January 1, 2000 installation and certification
requirements." November Decision at 5.
 17

legal requirements are consistent with our conclusions stated

in Part A of our discussion above. Next, the conclusion that

"[s]taying the requirements of [§] 75.17(a)(2)(iii) would

result in there being no NO X monitoring requirement for Unit

3, and no way of implementing Unit 3's NO X emission limit,"

logically follows from the legal conclusion that a substitute

apportionment methodology may not be used to demonstrate

compliance unless prior approval of that methodology has been

obtained. Finally, the conclusion that a stay resulting in no

way to implement the 0.86 lb/mmBtu Limitation would be

"contrary to the purposes of title IV and part 76" also

logically follows from the legal conclusion that part 76

imposes the 0.86 lb/mmBtu Limitation starting January 1, 2000.

Thus, the Acid Rain Division’s November Decision meets the

burden under 40 C.F.R. § 78.12(b) of going forward with

showing a rational basis for its decision.

In contrast, UCU’s Second Petition fails to satisfy its

burden of showing that these conclusions are, as the case may

be, either clearly erroneous, arbitrary and capricious or

otherwise warrant review. First, UCU states that the Acid

Rain Division’s concern regarding the existence of an approved

monitoring methodology is a "false concern" because "[t]ests

have demonstrated that, with the over-fire air system, Unit 3

will be capable of meeting the emission limitation by January
 18

1, 2000." Second Petition at 8. This statement fails to

raise a genuine issue as to the validity of the November

Decision not only because UCU has not provided any information

to support its allegation, but more significantly, because any

such test results showing unit 3's capability of meeting the

emission limitation are not material. UCU has not explained

how such test results show its ability to satisfy the

requirement to actually monitor and demonstrate compliance on

a continuing basis from and after January 1, 2000. Stated

simply, UCU has not shown any legal basis for use of such

tests to implement the NO X emissions limit and to monitor for

compliance. Thus, UCU’s unsupported allegation cannot serve

to demonstrate that the Acid Rain Division made a clear error

of fact or law or that any exercise of discretion or policy

determination was arbitrary or capricious or that review is

otherwise warranted.

Second, UCU argues that "EPA’s statement that a stay

would ‘result in there being no NO X monitoring requirement for

Unit 3, and no way of implementing Unit 3's NO X emission

limit, during the period January 1, 2000 through the end of

such a stay’ is simply untrue." Second Petition at 8, quoting

November Decision at 4. UCU asserts that either its proposed

apportionment plan or a suggestion made by EPA’s Region VII

"could be used to demonstrate Unit 3's compliance with the
 19

0.86 lb/mmBtu emission limitation on an interim basis." Id.

at 8-9. This argument, however, must be rejected because we

have concluded above, as a matter of law, that the regulations

require UCU to obtain approval of any proposed substitute

apportionment methodology before it can use that methodology

as a means of demonstrating compliance with the 0.86 lb/mmBtu

Limitation. UCU has not obtained such prior approval for its

suggested substitute apportionment methods and it has not

shown any legal basis for those methodologies to be used

without such prior approval. Thus, UCU’s reference to the

unapproved substitute apportionment methodologies cannot serve

to show that the November Decision denying a stay was clearly

erroneous, arbitrary and capricious or that review is

otherwise warranted.

2.    Evidentiary Hearing

UCU has argued that it should be granted an evidentiary

hearing "in order to demonstrate that EPA’s delay has caused

UCU’s inability to meet the compliance demonstration

requirement without suffering irreparable harm and that a

stay, therefore, is a fair and equitable remedy." Second

Petition at 9. The Board has not previously addressed the

issue of evidentiary hearings under part 78. However, the

rules governing requests for evidentiary hearings under Title

IV were modeled after the regulations governing such requests
 20

in the NPDES program. See Acid Rain Program: Permits,

Allowance System, Continuous Emissions Monitoring, and Excess

Emissions (Proposed Rule), 56 Fed. Reg. 63,002, 63,032 (Dec.

3, 1991). In the NPDES context, we have stated that the

request "must raise actual, relevant, and material disputes of

fact in order to obtain an evidentiary hearing." In re City

of Port St. Joe, 7 E.A.D. 275, 283 (EAB 1997). "In

administering this requirement the Board is governed by an

administrative summary judgment standard requiring the

presentation of a genuine and material factual dispute,

similar to judicial summary judgment under Rule 56, Fed. R.

Civ. P." Id., citing In re Mayaguez Reg’l Sewage Treatment

Plant, 4 E.A.D. 772, 780-82 (EAB 1993), aff'd sub nom. Puerto

Rico Aqueduct and Sewer Auth. v. EPA, 35 F.3d 600 (1st Cir.

1994).

In the present case, UCU has not shown a genuine factual

dispute that is material to the Board’s decision today and,

therefore, UCU’s request in its Second Petition for an

evidentiary hearing on issues relative to the November

Decision is denied.6 UCU had notice of the regulations that,

6
 This denial of UCU’s evidentiary hearing request as set

forth in the Second Petition does not address or reflect any
opinion of the Board relative to UCU’s request for an
evidentiary hearing as set forth in the First Petition with
respect to the October Decision. To the contrary, we are
reserving for later decision whether an evidentiary hearing
should be granted as to the merits of UCU’s appeal of the
 21

as explained in part A of our discussion, require UCU to

obtain prior approval of its proposed substitute apportionment

method before it can use that method to demonstrate compliance

with the 0.86 lb/mmBtu Limitation. UCU has not made any

allegation, much less provided any evidentiary support, that

it was led to believe that its proposed substitute

apportionment method had been or would be approved, or that it

reasonably relied upon such approval. By pursuing an

alternative that required prior approval, UCU assumed the risk

that the approval would not be forthcoming. Indeed, the

record reflects that, at all relevant times, UCU knew that it

did not have the required approval; it should have

reconsidered its approach to compliance in that light. 7 Thus,

its allegations of delay do not provide any basis whatsoever

for relief from the requirements of 40 C.F.R.

§ 75.17(a)(2)(iii).

apportionment method, as requested in the First Petition.
7
OAR has also argued that "questions concerning [UCU]’s
ability to meet the installation and certification requirement
[of the CEMS rules] by January 1, 2000 are more appropriately
addressed in the context of future enforcement action, if such
action proves necessary[.]" Response at 29. OAR states that
in the context of an enforcement action, EPA can establish "an
appropriate period of time for UCU to attain compliance with
section 75.17(a)(2)(iii), if necessary." Id.
 22

                   III.     Conclusion

For the foregoing reasons, the Board hereby (1) rejects

UCU’s contention that it may proceed with its proposed

apportionment plan to demonstrate unit 3's compliance with the

NOX emission limitation without having obtained prior written

approval from the EPA, and (2) denies UCU’s requests for a

stay and denies UCU’s request for review of the Second

Petition (Petition No. 99-3).

So ordered.



                                  ENVIRONMENTAL APPEALS BOARD



                                  By:       /S/
                                       Edward E. Reich,
                                  Environmental Appeals Judge

Dated: December 29, 1999
 23

                   CERTIFICATE OF SERVICE

 I hereby certify that copies of the foregoing Order

Consolidating Petitions for Review, Denying Request For
Interim Relief, And Denying Review of Petition No. 99-3 in the
matter of UtiliCorp United, Inc., CAA Permit Appeal No. 99-2 &
, were sent to the following persons in the manner indicated:

Pouch Mail and Telecopier: Alan W. Eckert
Michael W. Thrift
Air and Radiation Division
401 M. Street, SW (2344)
Washington, D.C. 20460
Fax No. 202-260-0586

First Class Mail and
Telecopier: Sarah Toevs Sullivan
Kathryn A. Larkins
Blackwell Sanders Peper Martin
LLP
2300 Main Street, Suite 1000
Kansas, City, Mo 64108
Fax No. 816-983-8080

Dated: December 30, 1999 /s/
Annette Duncan
Secretary