Christian County Generation, LLC (Board decision, July 17, 2012)

Plain-English summary

Christian County Generation, LLC was the permit holder for PSD Permit No. 02106ACB in Illinois. The Illinois Environmental Protection Agency withdrew the permit in its entirety while a petition by the Sierra Club and Natural Resources Defense Council was pending before the Environmental Appeals Board. Because the permit no longer existed, the Board held that the petition was moot and dismissed it with prejudice. The dismissal did not prevent the petitioners from seeking review of future Illinois agency action concerning the permit.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19(d) and Part 124
• Outcome: The petition challenging PSD Permit No. 02106ACB was dismissed with prejudice as moot after the permit was withdrawn.
• Key point: Withdrawal of the entire permit can moot a pending permit appeal while leaving future agency action open to review.

Full text (EPA EAB public release)

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

In re:

Christian County Generation, LLC PSD Appeal No. 12-01

PSD Permit No. 02106ACB

ORDER DISMISSING PETITION FOR REVIEW AS MOOT

On July 9, 2012, the Illinois Environmental Protection Agency ("IEPA") filed a

Notification of Permit Withdrawal in the above-captioned matter. IEPA indicated that on July 6,

2012, it withdrew the permit at issue in this appeal, PSD Permit No. 02106ACB ("Permit"), in its

entirety. IEPA Notification of Permit Withdrawal (July 9, 2012).

IEPA administers the Clean Air Act Prevention of Significant Deterioration ("PSD")

program in Illinois pursuant to a delegation of authority from the U.S. Environmental Protection

Agency ("EPA"), Region 5 ("Region"). See Prevention of Significant Deterioration Delegation of

Authority to State Agencies, 46 Fed. Reg. 9580 (Jan. 29, 1981) (setting forth Delegation

Agreement between State of Illinois and U.S. EPA); In re Zion Energy, LLC, 9 E.A.D. 701, 701

n.1 (EAB 2001). When PSD permits are issued by a state pursuant to a delegation of the federal

PSD program, as is the case here, such permits are considered EPA-issued permits and, therefore,

are subject to 40 C.F.R. part 124.

Under 40 C.F.R. § 124.19(d), at any time prior to the Environmental Appeals Board

("Board") issuing a decision to grant or deny review of a pending permit appeal, the permit issuer

may, as here, withdraw all or part of a permit decision and prepare a new draft permit addressing

the portions so withdrawn, provided appropriate prior notice of withdrawal is given. 40 C.F.R.

§ 124.19(d). As IEPA has withdrawn the Permit in its entirety, Sierra Club and Natural

Resources Defense Council's petition challenging the Permit is rendered moot.

Accordingly, Sierra Club and Natural Resources Defense Council's petition is hereby

DISMISSED WITH PREJUDICE. This dismissal with prejudice has no effect on the

petitioners' right to petition the Board for review of future IEPA action with respect to PSD

Permit No. 02106ACB in accordance with 40 C.F.R. § 124.19.

So ordered.

ENVIRONMENTAL APPEALS BOARD

Dated: July 17, 2012

By: [signature]
Catherine R. McCabe
Environmental Appeals Judge

¹ The three-member panel deciding this matter is composed of Leslye M. Fraser,
Catherine R. McCabe, and Kathie A. Stein.

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Order Dismissing Petition for Review as

Moot in Christian County Generation, LLC, PSD Appeal No. 12-01, were sent to the following

persons in the manner indicated:

By Facsimile and First Class U.S. Mail:

Ann Alexander, Senior Attorney Gerald T. Karr
Meleah Geertsma, Staff Attorney Assistant Attorney General
Natural Resources Defense Council Environmental Bureau
2 North Riverside Plaza, Suite 2250 69 West Washington Street
Chicago, IL 60606 Suite 1800
fax: 312-234-9633 Chicago, Illinois 60602

Kristin Henry, Staff Attorney Penny A. Shamblin
Sierra Club Harry M. Johnson III
85 Second Street Thomas J. Mascia
San Francisco, CA 94105 Hunton & Williams LLP
fax: 415-977-5793 951 East Byrd Street
Richmond, VA 23219
fax: 804-343-4703

By Facsimile and Pouch Mail: By Facsimile and Interoffice Mail:

Gaylene Vasaturo Kristi M. Smith
Office of Regional Counsel Air and Radiation Law Office
U.S. EPA Region 5 (C-14J) Office of General Counsel
77 West Jackson Boulevard U.S. EPA (MC-2344A)
Chicago, Illinois 60604 1200 Pennsylvania Avenue, N.W.
fax: 312-692-2093 Washington, DC 20460
fax: 202-564-5603

Date: July 17, 2012

Annette Duncan
Secretary