Campo Landfill Project, Campo Band Indian Reservation

Plain-English summary

Backcountry Against Dumps and Ed and Donna Tisdale challenged an EPA permit for a four-phase municipal solid waste landfill on the Campo Band Indian Reservation. They argued that the permit should require all emissions offsets before the first phase and that EPA's alternatives analysis was inadequate. The Board upheld the phased-offset approach in principle because each phase was independent and subject to preconstruction review, but remanded the permit so EPA could reconsider whether the first phase had sufficient offsets. The Board denied the alternatives-analysis challenge and the order does not state a civil penalty.

Decision snapshot

• Cited authorities: Clean Air Act sections 173 and 181; 40 C.F.R. §§ 1.25, 52.24, 124.13, and 124.19; Safe Drinking Water Act section 1424(e)
• Outcome: Mixed. The phased-offset and alternatives-analysis challenges were denied, while the first-phase offset calculation was remanded.
• Key point: A phased emissions-offset plan may be permissible for independent construction phases, but each phase still requires sufficient offsets before operation.

Full text (EPA EAB public release)

CAMPO LANDFILL PROJECT,
CAMPO BAND INDIAN RESERVATION

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IN RE CAMPO LANDFILL PROJECT,
CAMPO BAND INDIAN RESERVATION

NSR Appeal No. 95-1

ORDER DENYING REVIEW IN PART
AND REMANDING IN PART

Decided June 19, 1996

Syllabus

Petitioners Backcountry Against Dumps and Ed and Donna Tisdale seek review of U.S.
EPA Region IX’s decision to issue a final new source review preconstruction permit to Mid-
American Waste Systems, Inc., authorizing construction of a municipal solid waste landfill in four
phases spanning 30 years. The landfill will be built on the Campo Band Indian Reservation,
which sits atop an aquifer designated by Region IX as a sole source aquifer. Because the land-
fill will be located in an area that has not attained the National Ambient Air Quality Standards
for ozone, and will be a major source of volatile organic compounds, it is subject to the require-
ments of Part D of the Clean Air Act, 42 U.S.C. § 7501 et seq. Petitioners contend that the Region's
permit decision contravenes the Clean Air Act, because it allows Mid-American to obtain the off-
setting emissions reductions (“offsets”) required under Part D in a “phased” process that corre-
sponds to the landfill’s four construction phases. Petitioners contend that Mid-American should
instead be required to obtain sufficient offsets for all four landfill phases prior to commencing
operation of the first phase. Petitioners also contend that even if a phased offset approach is
appropriate, the Region did not require Mid-American to obtain sufficient offsets for the first
phase of the project. As a second ground for review, petitioners argue that the Region erred in
conducting the “alternatives analysis” required under Part D, because the Region relied on infor-
mation contained in the Bureau of Indian Affairs’ environmental impact statement (EIS) for the
project, which did not analyze off-reservation alternative sites, and which did not address the
environmental and social costs that petitioners say will be incurred if the sole source aquifer
becomes contaminated.

Held: The Clean Air Act’s offset requirements do not preclude the phased offset approach
utilized by the Region for this multi-phase landfill, in which each phase is independent, so long
as the Region conducts a preconstruction review of the proposed offsets for each subsequent
phase, and ensures as part of that review that sufficient offsets are obtained for that phase.
Review on the basis of that issue is therefore denied. However, because an issue may exist con-
cerning the sufficiency of the offsets for the first phase, the permit is remanded so that the
Region can consider and address that issue. As to the second ground for review, the petitioners
have not met their burden of showing that the Region erred in conducting the alternatives analy-
sis. Petitioners have not shown that the Region was required to consider off-reservation sites
when the primary purpose of the project (development of tribal land) can be served only by
locating the project on the reservation. Further, petitioners have not shown that the Region, in
reliance on the EIS, incorrectly concluded that the landfill, as proposed, posed an insignificant
threat to the aquifer. Therefore, review on the basis of that issue is also denied.

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506 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Before Environmental Appeals Judges Ronald L. McCallum
and Edward E. Reich.

Opinion of the Board by Judge Reich:

Before us is a petition for review filed by Backcountry Against
Dumps and Ed and Donna Tisdale (collectively “petitioners”), seeking
review of U.S. EPA Region IX’s decision to issue a final new source
review (NSR) permit to Mid-American Waste Systems Inc. (“Mid-
American”).’ The permit authorizes Mid-American to construct a
municipal solid waste landfill (MSWLF) on the tribal lands of the
Campo Band of Mission Indians, located in an area designated as
nonattainment for the pollutant ozone. As proposed by Mid-American
and approved by Region IX, the landfill will be built in four phases
over a 30-year period. The Region determined that the landfill will be
a “major” source of volatile organic compounds (VOCs), a precursor
of the pollutant ozone, because it has the “potential to emit” more
than 100 tons per year (tpy) of VOCs.? The Region imposed emissions

' Pursuant to Parts C and D of the Clean Air Act, 42 U.S.C. §§ 7470-7515, the new source
review (NSR) program requires new major stationary sources of air pollution and major modifi-
cations to such sources to be permitted prior to construction. In “nonattainment areas” (NAA),
areas that do not meet the national ambient air quality standards (NAAQS), the permits are gen-
erally referred to as NAA permits. See New Source Review Workshop Manual at 4. In areas where
the NAAQS are met (“attainment” or “unclassifiable” areas), the permits are referred to as pre-
vention of significant deterioration (PSD) permits. In this case, because the proposed facility is
to be located in an area that is attainment for some pollutants (e.g. particulate matter), but nonat-
tainment for others (¢.g. ozone), the permit contains both PSD and NAA requirements. The peti-
tioners have not appealed any of the PSD conditions. Because the parties refer to the permit as
the “NSR” permit, we will do so as well.

• Pursuant to the NAA regulations, a “major” stationary source is one which emits, or has
  the potential to emit, 100 tpy or more of any regulated pollutant. 40 C.ER. § 52.24(a)(4)(i). A
  stationary source that is major for VOCs is considered major for ozone. Id. § 52.24(f(4)Gi). In
  its response to the petition, Mid-American argues that recent developments in the law suggest
  that the proposed landfill is not, in fact, a “major” stationary source subject to NSR permit
  requirements. The basis for Mid-American’s argument is a recent decision of the U.S. Court of
  Appeals for the D.C. Circuit in which the court vacated EPA regulations under the Clean Air Act
  requiring federal enforceability of emissions controls in determining whether a source's “poten-
  tial to emit” renders it a “major” source. Mid-American's Response to Petition at 4 (citing
  Chemical Mfrs. Ass’n v. EPA, No. 89-1514 (D.C. Cir. Sept. 15, 1995)); see 40 C.F.R. § 52.24(n)(3)
  (defining “potential to emit”). The proposed landfill in this case was deemed a “major” source
  because although the Campo Environmental Protection Agency (CEPA) imposed emissions con-
  trols on the project via its own air quality requirements, those controls are not federally enforce-
  able because EPA has not finalized regulations governing approval of Tribal Implementation
  Plans (TIPs) under the Clean Air Act. Despite Mid-American’s claim that “it is no longer a major
  source subject to the pre-construction permitting requirements” of the NSR program, Mid-
  American has indicated that it Sis not requesting any affirmative relief [on this basis] because it
  is not the Petitioner in this matter, and is not in a procedural position to do so.” Mid-American’s
  Supplemental Brief at 2. It is therefore unnecessary for us to address Mid-American’s claim.

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CAMPO BAND INDIAN RESERVATION

limits in the permit for VOCs as well as other pollutants. Further, the
permit requires Mid-American to purchase VOC emissions reduction
credits (“offsets”) from other sources in an amount that will exceed
the landfill’s allowable VOC emissions (in a phased process corre-
sponding to the construction plan), in order to further the area’s
progress toward attaining the National Ambient Air Quality Standards
(NAAQS) for ozone. See Clean Air Act § 173(a) (A), 42 U.S.C.
§ 7503(a)(1)(A).°

Petitioners contend that the Board should grant review of the
Region’s permit decision for two reasons.’ First, petitioners argue that
the Region contravened Clean Air Act § 173(a)(1)(A) by implementing
a “phased” approach to offsets in the permit, thereby allowing Mid-
American to obtain offsetting VOC emissions reductions only as each of
the four landfill phases is ready to begin construction. As a supple-
mental argument, petitioners contend that even if a phased offset
approach is permissible under the Clean Air Act, the Region did not
require Mid-American to obtain sufficient offsets for the first phase of

3 As discussed in more detail below, the Clean Air Act requires the NAA permitting agency
to determine that:

[Bly the time the source is to commence operation, sufficient
offsetting emissions reductions have been obtained, such that
total allowable emissions from existing sources in the region,
from new or modified sources which are not major emitting
facilities, and from the proposed source will be sufficiently
less than total emissions from existing sources * * * prior to
the application for such permit to construct or modify so as
to represent * * * reasonable further progress [toward attain-
ing NAAQS].

Clean Air Act § 173(a)(1(A), 42 U.S.C. § 7503(a)(1)(A).

• Although most NSR permits are issued by states in accordance with State Implementation
  Plans (SIPs) approved by EPA pursuant to the Clean Air Act, the State of California does not have
  jurisdiction over tribal lands, and EPA has not yet finalized regulations governing the approval
  of TIPs, which would allow a tribe to assume the role of a state in issuing NSR permits.
  Therefore, Region IX issued this permit. Pursuant to 40 C.F.R. § 124.19, permit conditions based
  on the federal PSD regulations are reviewable by the Board, but the regulations do not express-
  ly confer upon the Board the authority to review NAA permit conditions. The regulations do,
  however, provide that cases not expressly delegated to the Board by regulation can be assigned
  to Board by special delegation from the Administrator. See 40 C.F.R. § 1.25(e)(2). Because the
  Region determined that the NAA permit conditions were an appropriate subject for such a spe-
  cial delegation, it advised commenters that any administrative appeal of the permit should be
  directed to the Board, with the understanding that the Board would request a delegation of
  authority to decide any such appeal. Upon receipt of this appeal, the Board requested a special
  delegation of authority from the Administrator to serve as the Agency's final decision maker with
  respect to the issues raised in the petition. The Administrator approved the special delegation
  on December 11, 1995.

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508 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

the project. Second, petitioners argue that the Region erred in conduct-
ing the “alternatives analysis” required under Clean Air Act § 173(a)(5),
because the Region did not consider off-reservation alternative sites,
and because the Region allegedly ignored the “environmental and
social costs” imposed by the landfill, which will be located over a sole
source aquifer.’ For the reasons set forth below, we conclude that peti-
tioners have not met their burden of showing that review of the permit
is warranted because the Region used a phased offset approach, nor
have petitioners shown that review of the Region’s alternatives analysis
is warranted. However, because petitioners have presented information
that suggests the Region’s offset calculation for the first phase of the
project may be in error, we are remanding the permit for the Region to
reconsider its calculation.

I. BACKGROUND

The facts leading to the present appeal are uncontroverted, and
may be briefly summarized. The Campo Reservation is located
approximately 45 miles east of San Diego and one mile north of the
Mexican border. About 300 tribal members live on the 16,000-acre
reservation. The reservation sits atop the Campo/Cottonwood Creek
Sole Source Aquifer, an aquifer underlying a 400 square-mile area
encompassing a portion of San Diego County and the U.S./Mexican
border.° The reservation is in the San Diego Air Basin, an area present-
ly designated as a “serious” ozone nonattainment area.” The Campo
tribe has experienced very high unemployment, average annual
income below the national poverty level, and inadequate housing.
The Region represents that the landfill project at issue here evolved
as a means of improving the economic circumstances of the tribe, and

• Section 173(a)(5) provides that the Region must determine that:

{Aln analysis of alternative sites, sizes, production processes,
and environmental control techniques for such proposed
source demonstrates that benefits of the proposed source sig-
nificantly outweigh the environmental and social costs imposed
as a result of its location, construction or modification.

Clean Air Act § 173(a)(5), 42 U.S.C. § 7503(a)(5).

° Pursuant to a petition filed by BAD, in May 1993 U.S. EPA Region IX made a final deter-
mination that the Campo/Cottonwood Creek aquifer is a sole source aquifer under Safe Drinking
Water Act § 1424(e), 42 U.S.C. § 300h-3(e). The effect of that designation is that “no commitment
for Federal financial assistance * * * may be entered into for any project which the Administrator
determines may contaminate such aquifer * * * so as to create a significant hazard to public
health * * *." Id.

” Pursuant to Clean Air Act § 181, ozone nonattainment areas are designated as “marginal,”
“moderate,” “serious,” “severe,” or “extreme.”

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to provide job opportunities for tribe members. See Region’s Response
to Petition for Review at 6.

In 1990 the tribe formed the Campo Environmental Protection
Agency (CEPA), to draft and enforce environmental regulations for
the reservation. That same year, Mid-American and Muht-Hei, Inc.
(“Muht-Hei”), a development corporation wholly owned by the
Campo Band, entered into a sublease agreement under which Mid-
American would construct and operate a solid waste landfill on 400
acres of the reservation.

In connection with its review of the sublease and landfill project
proposal, the U.S. Department of the Interior, Bureau of Indian Affairs
(BIA), prepared an environmental impact statement (EIS), pursuant to
§ 102 of the National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. § 4332, and implementing regulations adopted by the Council
on Environmental Quality. The Secretary of the Interior approved the
proposed landfill project in 1993. See Campo Solid Waste Management
Project, Record of Decision (June 28, 1993) (hereafter “ROD”). The EIS
concluded that implementation of certain mitigation measures to pro-
tect groundwater quality (including a double liner system and opera-
tional controls) would reduce the groundwater impacts of the landfill
“to a level of insignificance.” EIS at 4-26. The petitioners challenged
the adequacy of the EIS in federal district court. The court upheld the
EIS, and that determination was affirmed by the U.S. Court of Appeals
for the Ninth Circuit. See County of San Diego v. Babbitt, 847 F. Supp.
768 (S.D. Cal. 1994), aff'd Case No. 94-55548 (9th Cir. 1995) (unpub-
lished decision).

Mid-American submitted its application for an NSR permit to
Region IX in May 1992. After obtaining supplemental information
from Mid-American, the Region prepared a draft NSR permit in May
1994, held a public hearing, and accepted public comments on the
permit. The Region then determined that it needed to re-propose the
permit to add conditions under the PSD program relating to particu-
late matter emissions.* Following re-proposal, a second public hear-
ing and a second comment period, and after considering the com-
ments received on the draft permit and amending certain permit
conditions, the Region issued its final permit decision in August 1995.

® According to the Campo Band, the Region was required to re-propose the permit in light
of the Board’s decision in In re Masonite Corp., 5 E.A.D. 551 (EAB 1994), in which the Board
addressed application of the PSD requirements to certain particulate matter emissions. See
Response of Campo Band of Mission Indians, Muht-Hei, Inc., and CEPA to Petition for Review,
at 9-10.

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510 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

The permit allows the landfill to accept a maximum of 945,000
tons per year of non-hazardous solid waste. The final design capaci-
ty of the landfill is approximately 29 million tons of waste. When all
four phases of the landfill are complete, it will consist of 19 “cells,”
each approximately 20 acres in size.? In accordance with the permit
terms, each cell must be individually covered and capped after its
capacity is reached.

As the waste placed in a cell decomposes, it produces “landfill gas”
(LFG), comprised of methane and carbon dioxide. VOCs constitute
roughly 1.4% of the total LFG volume. Because the LFG is produced as
waste decomposes, the construction plan anticipates that VOC emis-
sions will build gradually over time, peaking 32 years after the first
waste is accepted. According to the Region, without the emissions con-
trols established in the permit, the project would have the potential to
emit approximately 380 tons of VOCs during the peak year.

In accordance with Clean Air Act § 173(a)(2), in order to minimize
emissions the landfill is required to comply with the “lowest achiev-
able emissions rate” (LAER). To that end, the permit requires Mid-
American to reduce VOC emissions by installing a “state of the art”
LFG collection system, and flares to destroy the VOC emissions. To
minimize fugitive emissions of VOCs, Mid-American must apply daily
cover on the waste, install impermeable caps on closed landfill cells,
and conduct surface monitoring for leaks of LFG. In this manner, the
Region contends that the potential emissions of VOCs from the pro-
ject will be limited to only 39.2 tons of VOCs during the peak (32d)
year.” The Region retains the authority to set lower VOC emissions
limitations for each future phase of the landfill, based on contempo-
raneous performance test results and emissions projections at the
beginning of the phase. See Permit Condition XI.D.14. Phase I of the
landfill (years 0-3.1) includes cells 1-3, representing 9.84% of the total
anticipated waste volume; Phase II (years 3.1-10.6) includes cells 4-8,
representing 24.30% of waste volume; Phase III (years 10.6-20.4)
includes cells 9-15, representing 31.53% of waste volume; and Phase

°® Mid-American explains that it “designed the project in phases to avoid constructing the
project in its entirety, only to have portions of the operation lie fallow for several decades or
more.” Mid-American’s Response to Petition at 6.

'° The Region contends that “the controls in the NSR permit are among the most stringent
conditions in any air quality permit that has been issued for the construction of a municipal solid
waste landfill to date, and * * * many of the NSR permit requirements are establishing new stan-
dards for future landfill air permits.” Region’s Response to Petition at 11. The petition for review
does not challenge the permit's control requirements.

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IV (years 20.4 through closure) includes cells 16-19, representing
34.33% of waste volume. See Permit Condition X1.D.1.

With respect to the offset requirement imposed by Clean Air Act
§ 173(a)(1)(A), the Region required Mid-American to obtain offsets at
a 1.2 to 1 ratio for the first phase of construction (cells 1-3). This
means that 4.7 tpy of offsets were required for the anticipated 3.9 tpy
of VOC emissions from Phase I (i.e. 1.2 x 3.9 tpy) in years 0- 3.1. That
ratio was the ratio in effect for the San Diego County Air Basin at the
time the offsets were approved by Region IX.'! Mid-American
obtained the offsets from the shutdown of the Calbiochem/
Novabiochem facility in La Jolla, California. The permit prohibits Mid-
American from constructing any further phase of the landfill without
obtaining additional offsets. Specifically, Mid-American must submit
an offset proposal 18 months before beginning construction of each
subsequent phase. Mid-American must propose offsets in an amount
representing the offset ratio then in effect for the San Diego County
Air Basin; the ratio may be the same, higher or lower than the ratio
utilized for Phase I. Upon submission of an offset proposal, the
Region will issue a preliminary offset decision, and publish the deci-
sion for public comment. In order to receive approval, the offsets
must be surplus, federally-enforceable, permanent, and quantifiable.
Further, the offsets must be in effect, achieved, and enforceable by the
time Mid-American begins placing waste in the new cells. The permit
also requires Mid-American to seek a permit modification and obtain
additional offsets if it, or Region IX or CEPA, projects that actual VOC
emissions will exceed the cumulative VOC emissions predicted in the
permit. See Permit Conditions XI.D.1.-14.

As part of its NSR permitting process, the Region was also
required to comply with Clean Air Act § 173(a)(5), by determining that
an “an analysis of alternative sites, sizes, production processes, and
environmental control techniques” demonstrated that the benefits of
the landfill significantly outweighed the environmental and _ social
costs imposed by it. See Clean Air Act § 173(a)(5), 42 ULS.C.
§ 7503(a)(5). Based on its review of information submitted by Mid-
American, including the information contained in the BIA’s EIS, the
Region determined that the benefits of the proposed landfill did sig-
nificantly outweigh the costs. This determination was memorialized in
a memorandum, and made part of the administrative record for the

" In order to show reasonable progress toward attainment of the NAAQS, the ratio of
required emissions offset to the permitted source’s emissions must be greater than one. New
Source Review Workshop Manual at G.6.

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512 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

permit decision. See Memorandum from Steve Ringer, Region IX
Environmental Engineer, to Administrative Record (May 22, 1995)
(hereafter “Alternatives Analysis Memorandum’),

II. STANDARD OF REVIEW

Pursuant to the special delegation of authority under which this
appeal is being considered, the Board must exercise its authority “in
a manner consistent with the procedures described in 40 C.ER. Part
124.” Paragraph 3, Clean Air Act Delegation of Authority to Environ-
mental Appeals Board from Administrator Browner (Dec. 11, 1995).
Thus, although Part 124 does not otherwise expressly apply to nonat-
tainment area (NAA) permits, for purposes of this appeal the Board
will apply the standard of review set forth therein. In accordance with
the Part 124 regulations, a Region’s permit decision will ordinarily not
be reviewed unless it is based on a clearly erroneous finding of fact
or conclusion of law, or involves an important matter of policy or
exercise of discretion that warrants review. See 40 C.ER. § 124.19; 45
Fed. Reg. 33,412 (May 19, 1980). The preamble to these rules states
that “this power of review should be only sparingly exercised,” and
that “most permit conditions should be finally determined at the
Regional level.” Id. The burden of demonstrating that review is war-
ranted is on the petitioner. In re Masonite Corp., 5 E.A.D. 551, 557
(EAB 1994); In re Inter-Power of New York, Inc., 5 E.A.D. 130, 144
(EAB 1994).

II. DISCUSSION
A. The Region's Use of “Phased” Offset Requirements

As support for their argument that the Region’s allowance of
phased offsets “directly conflicts” with Clean Air Act § 173(a)(1)(A),
petitioners point to the “plain and unambiguous” language of the
statute. Petition for Review at 4-5. As set forth supra, note 3, the
statute states that permits to construct new major sources in nonat-
tainment areas may be issued if “by the time the source is to commence
operation, sufficient offsetting emissions reductions have been
obtained such that total allowable emissions from existing sources in

" In addition to the NSR permit, Mid-American is required to obtain other permits prior to
commencing construction of the landfill. CEPA has issued its own air quality permit for the pro-
ject. Further, in 1995, CEPA received EPA approval of its MSWLF permit program, pursuant to the
Resource Conservation and Recovery Act, 42 U.S.C. § 6945(c(1(B) and 40 CER. Part 258. See 60
Fed. Reg. 21,191 (May 1, 1995). Mid-American has applied to CEPA for a permit under the MSWLF
program. According to the Region, petitioners have challenged EPA's approval of CEPA’s MSWLF
program in the United States Court of Appeals for the District of Columbia Circuit.

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the region * * * and from the proposed source will be sufficiently less
than total emissions from existing sources * * * so as to represent * * *
reasonable further progress” toward meeting the NAAQS. Clean Air
Act § 173(a)C1(A), 42 U.S.C. § 7503(a)(1(A) (emphasis added).
Petitioners contend that the italicized phrase on its face requires that
all reductions for the permitted source be “obtained” prior to com-
mencement of first operation of the source, regardless of whether
construction and operation, and the emissions to be offset, will occur
over a period of many years. Petition for Review at 3-5. In petitioners’
view, the statutory language does not confer upon the Region the dis-
cretion to allow offsets to be acquired as the subsequent phases of the
landfill are constructed. Petitioners state that the facility could,
instead, deal with the phased nature of the construction by obtaining
“offset futures, options or purchase and lease-back” agreements for
the facility’s lifetime emissions prior to commencement of any opera-
tions. Petitioners’ Reply Memorandum at 4, note 4.

In response,’ the Region explains that it used phased offsets for
this project because of the particular nature of landfill development
and operation, including the 30-year time frame for construction, the
fact that the project can be constructed in four discrete phases, and
the fact that the VOC emissions result from decomposition of waste
well after the waste is placed in the landfill cells. Region’s Response
to Petition at 13-14. The Region contends that a phased offset
approach is environmentally superior to requiring that all offsets for
the entire lifespan of the landfill be obtained prior to construction
because:

(1) By providing more precise estimates of future
emissions, and the flexibility to revise the offset
requirements, the phased approach enables Region 9
to ensure that allowable emissions from the project
will always be lower than the amount of offsets
obtained. This will ensure reasonable further progress
in attaining the NAAQS * * *.

(2) The phased approach creates a powerful incentive
for Mid-American to aggressively seek out new and
more efficient controls for future project phases. More

‘3 Pursuant to the Board’s request, the Region filed a response to the petition for review.
In addition, Mid-American and the Campo Band filed responses to the petition, the petitioners
filed a reply to the responses, and the Region, Mid-American, and petitioners filed supplemen-
tal briefs.

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514 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

effective controls would reduce the number of offsets
required for, and thus the cost associated with, the
construction of future phases.

(3) The phased offset approach provides Mid-
American with additional flexibility to decide not to
construct future phases of the landfill if the market
demand for landfills declines in the future. If Region 9
required complete offsetting for the entire project
before issuing the NSR permit, then Mid-American
would have a vested financial interest in constructing
those future phases. The phased offset approach thus
avoids encouraging emissions growth that might not
otherwise occur.

(4) Under the phased approach, Region 9 may also
require Mid-American to reevaluate LAER for future phas-
es of the project. * * * The likely result of such a reeval-
uation would be stricter controls on VOC emissions.

Id. at 15-16.

The Region argues that its phased approach is both consistent
with the language of the Clean Air Act, and reasonable in light of the
particular nature of landfill construction. With respect to petitioners’
“plain language” argument, the Region notes that the statute requires
that a source obtain emissions reduction credits sufficient to offset
“total allowable emissions’ from existing sources and the proposed
source, prior to commencing operation. Region’s Response at 17
(quoting Clean Air Act § 173(a)(1)(A)) (emphasis in Region’s
Response).'* The Region states that, in this instance, “allowable emis-
sions” are a function of the maximum rated capacity of the source and
“[tIhe emissions rate specified as a federally enforceable permit con-
dition, including those with a future compliance date.” Id. (quoting 40
C.F.R. § 51.165(a)(D)CxiX(C)). The Region argues that the enforceable
conditions of this permit limit allowable VOC emissions from Phase |
(years 0-3.1) to 3.9 tpy. Since those allowable emissions have been
offset by 4.7 tpy of emissions reductions obtained by Mid-American,
and the permit prohibits construction of the next phase of the landfill

" The “source” in this instance comprises the entire landfill as permitted. See 40 CER.
§ 52.24(P)1) & (2).

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(and thus emissions from the next phase) unless and until Mid-
American provides offsets sufficient to account for the VOC emissions
expected to result from the next phase, the Region argues that the
requirements of Clean Air Act § 173(a)(5) have been fulfilled. As a
safeguard, the permit includes a requirement that Mid-American pro-
vide reports every two years projecting VOC emissions, and that in the
event EPA, CEPA, or Mid-American project that emissions will exceed
the cumulative offset amounts for any phase, Mid-American must
acquire additional offsets. Permit Condition X1.D.14.

Other than citing the language of the statute itself, petitioners have
cited no authority to support their claim that the Region’s phased off-
set approach is clearly in error. Based upon our review of the language
of the statute, and the purposes underlying the offset requirement as
reflected in the legislative history, we agree with the Region that its
decision to link the permit’s offset requirements to construction phas-
es does not, in this instance, obviously conflict with the statute, and
furthers the goals of the Clean Air Act’s nonattainment provisions.
While petitioners suggest that alternative mechanisms (“futures,
options, and purchase and lease-back agreements”) would allow Mid-
American to obtain all necessary offsets prior to constructing the first
landfill phase, the fact that such alternatives may exist does not per-
suade us that petitioners’ approach is superior to the Region’s, or that
the Region’s approach is unsupportable under the statute.

In our view, the language of § 173(a)(5) is not free from ambigu-
ity.'° It does not, by itself, compel the result petitioners seek. Rather,
we conclude that the requirement that “by the time the source is to
commence operation, sufficient offsetting emissions reductions have
been obtained” may properly be interpreted in a manner that accounts
for the nature of the source being constructed and operated. We do
not believe that the statute inflexibly constrains the Region’s ability to
craft appropriate offset requirements for a project that will be con-
structed and “commence operation” in discrete phases over the course
of many years. We believe that the statute does provide the Region
with the flexibility to implement phased offsets in an appropriate case,
so long as the Region conducts a preconstruction review of the pro-

‘5 Petitioners contend that the Region’s approach impermissibly treats each phase as a sep-
arate “source,” rather than requiring all offsets to be obtained before the “source” is to “com-
mence operations.” See Petitioners’ Reply Memorandum at 13 (citing Clean Air Act § 173(a)(1)).
The Region, however, acknowledges that the entire landfill is one source, but notes further that
“operations” at this particular source will “commence” in four phases. See Region's Supplemental
Brief at 5, n.2. This exchange highlights our point that the statute is not unambiguous as applied
to this particular project.

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516 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

posed offsets for each subsequent phase, and ensures that sufficient
offsets will be acquired to fulfill the statutory mandate of “reasonable
further progress” toward achieving the NAAQS.!°

The Region’s use of phased offsets appears to appropriately serve
the overriding need to achieve progress toward attaining the NAAQS,
while accommodating the particular and complicated air emissions
issues posed by a municipal waste landfill. The permit’s offset require-
ments reflect an attempt to establish a lifetime VOC emissions profile
for the landfill, correlate those emissions to the four landfill phases,
and require greater than one-for-one offsetting emissions reductions
before allowing construction of any phase. In our view, the Region’s
method does not contravene the Clean Air Act’s goals of controlled
“clean growth.”"”

Our conclusion that the Region’s approach in this case is legally
supportable rests upon the nature of the project at issue, specifically
the fact that the project can be constructed in four discrete phases that
are independent of each other. Provided that sufficient offsets are in
place to account for all anticipated VOC emissions from a particular
phase, progress toward attaining the NAAQS will be made even if
Mid-American decides not to construct future phases (as Mid-
American has the right to do), or such construction is disallowed by
the Region. The Agency has, for other purposes, recognized a distinc-
tion between multi-phase projects that are independent of each other
(where construction of one phase does not necessitate the construc-
tion of another in order to complete a project or provide the intended
service), and those that are mutually-dependent (where construction of
one phase necessitates construction of another). See Memorandum
from John Seitz, New Source Review Program Supplemental
Transitional Guidance on Applicability of New Part D NSR Permit

© Although there is little legislative history directly addressing the offset requirement, the
Region's phased approach appears consistent with the purposes underlying the nonattainment
provisions of the Clean Air Act, as reflected in the legislative history. The nonattainment provi-
sions enacted in the Clean Air Act of 1977 were developed in recognition of the need to allow
some industria] growth while ensuring continued progress toward attaining the NAAQS. To that
end, Congress allowed the development of new major stationary sources of air pollution in nonat-
lainment areas, provided that case-by-case preconstruction review of such proposed sources,
coupled with greater than one-for-one emissions offsets, demonstrated that progress was made
toward attaining the NAAQS. See, e.g., Senate Debate on §. 252, 123 Cong. Rec. § 91-2-225 (1977)
(statement Of Senator Muskie). The emphasis on case-by-case preconstruction review suggests
both a concern that proposed new sources be carefully reviewed to ensure that no source caus-
es a degradation of air quality, as well as a recognition that proposed new sources could present
unique and individual emissions reduction and offset requirements. See id.

™ See supra n.16.

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CAMPO LANDFILL PROJECT, 517
CAMPO BAND INDIAN RESERVATION

Requirements, p. 3 (Sept. 3, 1992) (explaining how new Part D NSR
permit requirements will apply to multi-phase projects). The Region's
use of phased offsets recognizes the distinctive nature of a multi-phase
project consisting of independent phases, where clear checkpoints
exist that allow adequate preconstruction review of offset proposals for
future phases, and disallowance of further construction if necessary,
without wholly undermining the purposes of the project. We believe
that this approach is fully consistent with the intent of § 173(ay (A),
which is to ensure that no construction begins until adequate offsets
have been identified for the emissions that will result from the project
being constructed. For independent phases of a project where the
Region has yet to approve construction of future phases, it is reason-
able to analyze the offset requirement in terms of the construction
being approved.

We also agree with Mid-American that the Region's phased
approach reflects the unusual nature of a MSWLF in a manner that is
analogous to the Agency's phased approach to emissions controls set
forth in the recently promulgated New Source Performance Standard
(NSPS) for municipal solid waste landfills. Recognizing that landfill
emissions change over time due to a variety of factors, the NSPS apply
only after a certain emissions threshold is reached, not before the
emissions are generated. See 61 Fed. Reg. 9905 (March 12, 1996) (final
rule); 56 Fed. Reg. 24468 (May 30, 1991) (proposed rule). The NSPS
thus reflect the Agency's desire to establish control requirements that
reasonably conform to the practicalities of landfill operation, while
preserving the goal of improving the nation’s air quality.

Based on the foregoing, we conclude that petitioners have not
met their burden of showing that the Region’s use of phased offsets
is clearly inconsistent with the Clean Air Act.8 However, with the
Board's leave the petitioners filed a reply to the Region’s response to
the petition for review. In that reply, the petitioners challenge the
claim made by the Region in its response to the petition that sufficient
emissions reductions have been obtained to offset “allowable emis-
sions” for Phase I, assuming no further landfill phases are built.
Specifically, petitioners contend that Mid-American’s cell-by-cell emis-

8 In addition to their statutory argument, petitioners contend that even if a phased
approach to offsets is permissible under the Clean Air Act, it diverges from longstanding Agency
practice, and thus reflects an exercise of discretion or important policy consideration which the
Board should review. As grounds for this argument, petitioners rely only on selected portions
of statements made by the Region in its Response to Comments. We have reviewed the excerpts
quoted by petitioners, and find that, read in context, they do not support petitioners’ claim. We
therefore conclude that petitioners’ argument is without merit, and review on the basis of this
issue must be denied.

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518 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

sions estimates show that if only Phase I of the landfill is built and
operated, VOC emissions from Phase I (cells 1-3) will exceed the level
assumed by the Region beginning in year 6. Id. at 11. Based on Mid-
American’s emissions estimates, petitioners calculate that Phase I
emissions will peak at 6.2 tpy (assuming no future phases are built
and additional offsets acquired), which, at the currently applicable
offset ratio, would require approximately 7.5 tpy of offsets. Id. at 12.
The Region, in contrast, had looked at Phase I as covering only years
0-3.1, on the assumption that Phase II (with additional offsets) would
begin in year 3.1. However, since the permit allows the construction
of cells 1-3, which will generate emissions beyond year 3.1, those
emissions must be considered at this point rather than as part of the
offset proposal review for Phase II.

In response, the Region and Mid-American do not directly dispute
the substance of petitioners’ argument. The Region states that it “is
willing to consider the merits of [petitioners’] argument,” but that the
issue was not preserved for review because no commenters chal-
lenged Mid-American’s emissions estimates or the Region’s offset cal-
culations. Region’s Supplemental Brief at 3. The Region and Mid-
American argue that if any shortfall in offsets occurs it can be
addressed through the mechanism provided in Permit Condition
XI.D.14. Petitioners state that they did not provide comments on the
offset calculation, because the Region’s claim that the offsets required
in the permit are sufficient for the allowable Phase I emissions was
not “reasonably ascertainable” at the time the draft permit was issued.
Petitioners contend that the Region’s claim that no emissions from
future construction are yet “allowed” is a “new theory” that petition-
ers did not have the opportunity to address during the public com-
ment period. Petitioners’ Reply Memorandum at 10.

In accordance with 40 C.F.R. § 124.13, a commenter on a draft
permit must raise “all reasonably ascertainable issues” during the pub-
lic comment period in order to preserve an issue for administrative
review. See In re Ogden Martin Systems of Onondaga, Inc., 4 E.A.D.
405, 407 n.4 (EAB 1992). Petitioners acknowledge that neither they
nor other commenters challenged Mid-American’s emissions esti-
mates, or the resulting offset calculations for Phase I, during the per-
mit review process, nor did petitioners raise the issue in their petition
for review. We find that these facts are not fatal to our consideration
of the issue because, based upon our review of the record, we con-
clude that this issue was not so clear as to be “reasonably ascertain-
able” during the public comment period. We agree with petitioners
that the offset calculations presented by the Region during the permit
review process showed that the offset schedule would always remain

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CAMPO LANDFILL PROJECT, 519
CAMPO BAND INDIAN RESERVATION

“ahead of the emissions curve,” because they included anticipated off-
sets for each phase sufficient both to account for the cumulative emis-
sions from existing phases as well as to account for emissions from
the phase under review. See Petitioners Supplemental Reply Memo-
randum at 2; Permit Condition XJ.D.1. Based on the Region's analysis,
the apparent shortfall for Phase I now identified by petitioners was
masked, because the schedule does not account for the possibility
that future phases will not be constructed. The Region has not identi-
fied any place in the record where it considered the potential air qual-
ity effects that would result if landfill phases beyond Phase I are not
constructed and additional offsets obtained.

The Region has defended its phased offset approach by contend-
ing that Mid-American has obtained sufficient emissions reductions to
offset emissions from cells 1-3 in Phase I, and that no further con-
struction is yet allowed. As such, the importance of the calculations as
they relate solely to cells 1-3 now becomes clearly apparent in a way
in which it may not have been during the public comment period.
Given the importance of the offset requirement, we choose to resolve
any ambiguity as to whether this issue was reasonably ascertainable
in favor of the petitioner.”

Further, in light of the overriding importance of ensuring that suf-
ficient offsets are obtained before operations begin so as to represent
reasonable further progress toward attaining the NAAQS, and the fact
that the permit is not yet final, we do not believe that the corrective
mechanism contained in the permit can serve as a substitute for care-
ful preconstruction calculation of offsets for each landfill phase.
Accordingly, given that the Region has not disputed that an issue
about the adequacy of Phase I offsets may exist, we are remanding
the permit so that the Region can consider and address the issue
raised by petitioners.

B. The Region’s Alternatives Analysis Under § 173(@)(5)

As noted earlier, Clean Air Act § 173(a)(5) provides that the
Region may issue a NAA permit if, inter alia:

'° Moreover, as petitioners point out, in unusual circumstances the Board has exercised its
discretion to consider issues that might not have been preserved for review, even though they
may have been reasonably ascertainable at the time. See In re Marine Shale Processors, Inc.. 5
E.A.D. 751, 763 n.11 (EAB 1995) (Board exercised discretion to consider certain issues because
of significance of issues, and fact that Region addressed the merits in its response). Although we
conclude that the issue raised by petitioners was not “reasonably ascertainable” during the pub-
lic comment period, we note that, given the importance of the offset requirement, we can exer-
cise our discretion to consider the issue on that basis as well.

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520 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

[A]ln analysis of alternative sites, sizes, production pro-
cesses, and environmental control techniques for such
proposed source demonstrates that benefits of the pro-
posed source significantly outweigh the environmental
and social costs imposed as a result of its location,
construction, or modification.

Clean Air Act § 173(a)(5), 42 U.S.C. § 7503(a)(5).2° The statute contains
no express requirements concerning the particular contents of the
Region’s “alternatives analysis,” nor has the Agency promulgated reg-
ulations addressing the required analysis.

Petitioners’ objections to the Region’s alternatives analysis are
premised on the fact that the proposed landfill is sited over a sole-
source aquifer that serves an extensive area surrounding the reserva-
tion, in both the U.S. and Mexico. Petitioners argue that the Region
should have considered off-reservation sites that would not impact the
aquifer as appropriate alternatives to the on-reservation site.
Petitioners allege that the Region erred in relying on the BIA’s EIS in
conducting its analysis, since the purposes of NEPA’s EIS requirement
are different than those of the alternatives analysis required by the
Clean Air Act. Petitioners further contend that the Region did not ade-
quately weigh the social and environmental costs associated with
potential loss of the sole-source aquifer due to contamination from the
landfill, although petitioners provided the Region with information
concerning the substantial cost of providing an alternative water
source. Petition for Review at 5-8.

As explained earlier, the Region memorialized its § 173(a)(5)
analysis in a brief memorandum that concluded that, based on its
review of information in the record from BIA’s EIS, “the benefits of
the proposed Project significantly outweigh the environmental and
social costs that are likely to result from its construction and opera-
tion.” Alternatives Analysis Memorandum (May 22, 1995). The memo-
randum recited some of the benefits to be conferred by the project,
such as developing and diversifying the economic base of the tribe,
and providing long-term employment opportunities. Id. The memo-
randum also stated that the EIS addressed “the potential environmen-

20

Mid-American contends that an alternatives analysis was not required for this permit,
because § 173(a)(5) does not apply to permit applications pre-dating the effective date of the
1990 Clean Air Act amendments. Mid-American’s Response to Petition for Review at 13. Because
Mid-American did not appeal the Region's alternatives analysis, and also contends that the
Region satisfied the alternatives analysis requirement, it is unnecessary to address this claim
(with which the Region disagrees).

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CAMPO LANDFILL PROJECT, 521
CAMPO BAND INDIAN RESERVATION

tal and social costs of the project, noting that the landfill will meet or
exceed all Federal regulatory standards.” Id.

We emphasize again the heavy burden petitioners bear under the
regulations in showing that they are entitled to review of the Region’s
alternatives analysis. Petitioners “may only prevail if the evidence in
the record in support of their view clearly outweighs the evidence pre-
sented by the Region in support of its decision.” In re Inter-Power of
New York, Inc., 5 E.A.D. 130, 144 (EAB 1994) (emphasis in original),
see 40 C.F.R. § 124.19(a). Our decisions have distinguished between
instances where a permit issuer has failed to undertake an analysis
required by the Clean Air Act, and instances where the analysis was
performed but the permit issuer arrived at a conclusion that a peti-
tioner disagrees with. See Inter-Power at 144. Where a permit issuer
has failed to undertake any required analysis, a remand is usually
appropriate so that the analysis may be performed. In contrast, when
an analysis has been performed and a determination made, those
favoring a different outcome must show that the evidence “for” the
outcome clearly outweighs the evidence “against” the outcome. See id.
That heavy burden is particularly appropriate where, as here, the
nature of the decision to be made is inherently subjective.

In this instance, we cannot say that the Region failed to under-
take the analysis required by § 173(a)(5). Although the Region’s mem-
orandum documenting its analysis is brief, it does demonstrate that an
analysis was performed, and that, based on the information reviewed,
the Region concluded that the benefits of the landfill significantly out-
weighed its environmental and social costs.*1 We disagree with peti-
tioners’ claim that by relying on the EIS, the Region abrogated its
responsibilities under § 173(a)(5). Petitioners argue that a NEPA EIS
cannot serve as a substitute for a § 173(a)(5) analysis because
§ 173(a)(5) “expressly requires an alternative sites analysis, as well as
an analysis of the environmental and social costs of the project as

+1 The Region also explained in its response to comments that:

EPA required Mid-American to supplement its permit appli-
cation by submitting supporting documents from the EIS con-
cerning, for example, the alternatives analysis. EPA has
included that support in the administrative record and has
concluded, independent of the EIS, that with respect to
potential alternative sites, sizes, production processes, and
environmental control techniques, the benefits from the pro-
ject as proposed significantly outweigh the environmental
and social costs imposed as a result of its location, construc-
tion or modification.

Region's Response to Comments at 32.

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522 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

compared to purported benefits,” and also requires an affirmative
showing that the benefits of the project “significantly” outweigh the
costs. Petitioners’ Reply Memorandum at 18 (emphasis in original).
Petitioners say that, in comparison, a NEPA EIS “requires simply a dis-
cussion of ‘alternatives to the proposed action.” Id. at 17-18 (quoting
NEPA, 42 U.S.C. § 4332(C)(iii)). Petitioners acknowledge, however,
that a NEPA document might be relied upon “if it also meets the cri-
teria of Section 173(a)(5).” Petitioners Reply Memorandum at 18. The
Region similarly contends that it was appropriate for it to rely on the
EIS “provided the information contained therein was adequate.”
Region’s Response to Petition at 21. Because the Region reviewed the
EIS and concluded that it was adequate for certain purposes under
§ 173(a)(5), it is incumbent upon petitioners to provide evidence that
the portions of the EIS relied on by the Region were clearly insuffi-
cient for purposes of the § 173(a)(5) analysis.

Petitioners argue that the Campo EIS is “flawed” for purposes of
the Region’s § 173(a)(5) analysis because it did not analyze alternative
landfill sites that would not impact the aquifer. Because the entirety
of the reservation sits atop the aquifer, such sites would necessarily
be off-reservation. Petitioners contend that the Region was advised
that appropriate off-reservation alternative sites exist in the San Diego
area “that would have sharply decreased impacts as compared to the
proposed project.” Petitioners’ Reply Memorandum at 20.

Based upon the particular purposes of this project, petitioners
have not persuaded us that any alternative sites analysis beyond that
contained in the EIS, and reviewed by the Region, is required under
§ 173(a)(S).° In the section entitled “Purpose and Need for the
Action,” the EIS reviewed the economic circumstances of the Campo
Band, noting that the Band “lives under socioeconomic circumstances
that include exceptionally high unemployment due to lack of job
Opportunities, an average annual income of those employed that is
below the U.S. definition of the poverty level, and substandard hous-
ing.” EIS at 1-3. The EIS concluded that:

The portion of the reservation proposed for project
development has remained undeveloped and unused
since the creation of the reservation, except for occa-
sional cattle grazing. With the exception of the project
proposed, the Campo Band has been unable to iden-

• The EIS included an analysis of alternative on-reservation sites, although those sites were
  ultimately rejected in favor of the proposed site. EIS at 4-17, 4-19; ROD at 6.

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CAMPO LANDFILL PROJECT, 523
CAMPO BAND INDIAN RESERVATION

tify an economically viable use for the area. The inte-
grated solid waste management project has been iden-
tified by the Campo Band as an appropriate means of
addressing their long-standing objective and need to
establish a strong and diverse economic base to
improve the poor socioeconomic position of the Band
and strengthen the infrastructure of the tribal govern-
ment. Through a combination of lease revenues, tip-
ping-fee arrangements, and resales into the recycling
market, the proposed project would provide long-
term revenue to the Campo Band that would enable
them to increase funding to education, housing, med-
ical benefits, and other programs and developments
needed to improve tribal living conditions. In addi-
tion, the proposed project would provide job oppor-
tunities both needed by and suitable for Campo Band
members.

EIS at 1-3. Petitioners have provided no evidence that contradicts the
purposes underlying the project, as described in the EIS. Petitioners
litigated the issue of the alleged need to analyze off-reservation alter-
native sites in their federal court challenge to the EIS. See County of
San Diego v. Babbitt, 847 F.Supp. 768 (S.D.Cal. 1994), aff'd, Case No.
94-55548 (9th Cir. 1995). The district court concluded that “the pur-
pose of the Project is to provide a significant economic development
opportunity for the Campo Band. * * * Because the Project was
designed to further [the goals of promoting self-determination and
self-sufficiency among Indian Tribes], the BIA reasonably limited the
range of alternative sites to those located on the Reservation only.” Id.
The issue thus becomes whether a Clean Air Act § 173(a)(5) site analy-
sis would require anything different. Petitioners have provided no
authority that, in these circumstances, where the primary purpose
underlying the proposed project (economic development of fallow
tribal land) can be served only by an on-reservation site, the Clean Air
Act would require analysis of off-reservation alternative sites. We
instead find the reasoning of the district court to be highly persuasive.
We therefore conclude that petitioners have not met their burden of
showing that the Region relied on a “flawed” EIS in conducting the
§ 173(a)(5) analysis because the EIS did not include an analysis of off-
reservation sites.

Petitioners next argue that the “second flaw in the Campo project
EIS when viewed under the criteria of Section 173(a)(5) is the failure
of the EIS to address the environmental and social costs from putting
the sole source aquifer under the project at risk through possible con-

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524 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

tamination.” Petitioners’ Reply Brief at 21.23 The “costs” referred to by
petitioners are the substantial costs required to provide an alternative
source of water to the area served by the aquifer, in the event the
aquifer becomes contaminated. Petitioners provided the Region with
an estimate by the San Diego County Water Authority that extending
a pipeline to provide water to the Campo area would cost at least
$195 million. Id.

Central to petitioners’ claim is petitioners’ conclusion that the
landfill, as proposed, does in fact pose a threat to the continued use
of the aquifer. However, the EIS concluded that, with appropriate con-
trol measures, the water quality impacts posed by the landfill would
be reduced “to a level of insignificance.” EIS at 4-21. Petitioners have
provided no evidence to suggest that the conclusion in the EIS is
incorrect. Absent such a showing, we cannot say that the EIS is
“flawed” for purposes of § 173(a)(5) because it did not address the
costs that petitioners contend would be incurred due to loss of the
aquifer. Petitioners therefore have not shown that the Region erred by
relying on the conclusions in the EIS, nor have they shown that the
Region erred by disregarding the replacement water supply figures in
its § 173(a)(5) analysis. Review on the basis of this issue must there-
fore be denied.”

IV, CONCLUSION

For the foregoing reasons, the petition for review is hereby
denied with respect to petitioners’ claims that the Region erred in uti-
lizing a phased approach to the offsets required for the project under
Clean Air Act § 173(a)(1)(A), and erred in performing the alternatives

• This argument seems directed at whether the landfill should be located anywhere on the
  reservation since, as previously noted, the whole reservation overlies the aquifer. An analysis in
  the EIS of alternative sites on the reservation concluded that “(the potential for groundwater
  impacts presented by each of the alternatives (with the exception of the No-Action Alternative)
  lis] similar.” ROD at 13. Thus, this issue is largely a restatement of the previous issue, 7.e.,
  whether off-reservation sites should have been considered.

*" As noted above, the adequacy of the EIS was litigated by petitioners, and upheld on
review. County of San Diego v. Babbitt, 847 F. Supp. 768 (S.D. Cal. 1994), affd, Case No. 94-
55548 (9th Cir. 1995). Moreover, as the district court observed, although the EIS was prepared
prior to the aquifer's sole-source designation, the EIS “specifically states that the aquifer under-
lying the Campo reservation is the region’s only or primary source of water. * * * This is the
premise underlying much of the analysis contained in the EIS.” San Diego v. Babbitt at 772-73.

• We note that, as the Region explained in its response to comments, “lilssues of ground-
  water protection were addressed through the RCRA (MSWLF] program approval process.”
  Region's Response to Comments at 23. As explained supra, note 12, Mid-American must obtain
  a MSWLF permit from CEPA, in which groundwater protection measures will be addressed.

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CAMPO LANDFILL PROJECT,
CAMPO BAND INDIAN RESERVATION

A
No
wat

analysis required by Clean Air Act § 173(a)G). The permit is remand-
ed, however, so that the Region may reconsider its calculation of the
amount of offsets required for Phase I of the project. Upon comple-
tion of remand proceedings, an appeal to the Board will not be nec-
essary to exhaust administrative remedies. See 40 C.F.R. § 124.19¢f).°

So ordered.

% Although 40 C.ER. § 124.19(c) contemplates that additional briefing will be submitted
upon the grant of a petition for review, a direct remand without additional submissions is appro-
priate where, as here, it does not appear that further briefs on appeal would shed light on the
issues to be addressed on remand. See, e.g., In re Masonite Corp., 5 E.A.D. 551, 586 (EAB 1994).

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