Multitrade Limited Partnership

Plain-English summary

Multitrade Limited Partnership sought an amended prevention of significant deterioration permit from Virginia for a small wood-fired power generation plant. The Virginia Department of Air Pollution Control deleted coal as a permitted fuel and added a restriction tied to enforceable emission offsets. Margaret West challenged the omission of a wood-shipment recordkeeping provision, while Dale Phillips challenged the enforceability of a condition concerning the shutdown of another company's boilers. The Environmental Appeals Board denied West's petition because she identified no factual or legal error, policy issue, or abuse of discretion warranting review. It denied Phillips's petition as untimely and also found no basis to review the permit condition, which was final for federal-law purposes.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 52.21 and 124.19
• Outcome: Both petitions for review were denied, and the amended PSD permit remained in place.
• Key point: A permit petition must be timely and identify a clear error, important policy issue, or improper exercise of discretion that warrants Board review.

Full text (EPA EAB public release)

24 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF MULTITRADE LIMITED
PARTNERSHIP

PSD Appeal No. 92-2

ORDER DENYING REVIEW

Decided April 29, 1992

Syllabus

In separate petitions for review, two citizens, Margaret P. West and Dale Phillips,
have challenged the decision of the Virginia Department of Air Pollution Control
(VDAPC) to issue an amended prevention of significant deterioration (PSD) permit
to Multitrade Limited Partnership, for construction and operation of a small wood-
fired power generation plant. VDAPC recently amended the permit to delete coal
as a fuel option and to include a restriction preventing the facility from operating
until certain specific offsets are obtained and made enforceable. Both Ms. West's
petition and Mr. Phillips' petition challenged the amended permit because it does
not contain a provision that was in the original version. The omitted provision required
recordkeeping of wood shipments to the facility. Mr. Phillips' petition also raises
the issue of whether the shut down of another company's boilers, which will provide
offsets for Multitrade's emissions, will be federally enforceable.

Held: Ms. West's petition for review is denied because it fails to identify any
factual or legal errors or any policy considerations or exercises of discretion that
warrant review. Mr. Phillips' petition is denied because it was not filed in a timely
fashion and because it fails to identify any factual or legal errors or any policy
considerations or exercises of discretion that warrant review.

Before Environmental Appeals Judges Ronald L.
McCallum, Edward E. Reich, and Timothy J. Dowling (Acting).

Opinion by Judge McCallum:

In separate petitions for review, two citizens, Margaret P. West
and Dale Phillips, have challenged the decision of the Virginia De-
partment of Air Pollution Control (VDAPC) to issue an amended
prevention of significant deterioration (PSD) permit to Multitrade
Limited Partnership, for construction and operation of a small wood-
fired power co-generation plant in the northern part of Pittsylvania
County, Virginia. As requested by the Environmental Appeals Board,

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MULTITRADE LIMITED PARTNERSHIP 25

VDAPC has filed a response to the petitions. For the reasons set
forth below, the petitions for review are denied.

Under the rules governing this proceeding, there is no appeal
as of right from the permit decision. Ordinarily, a petition for review
of a PSD permit determination is not granted 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 CFR § 124.19(a). The preamble to the regulations
states that “this power of review should be only sparingly exercised,”
and that “most permit conditions should be finally determined at
the Regional [State] level * * *.” 45 Fed. Reg. 33,412 (May 19, 1980).
The burden of demonstrating that the permit conditions should be
reviewed is therefore on the petitioners. In this case, the petitioners
have not carried that burden.

Background: An earlier version of the permit was issued on April
8, 1991. Numerous parties appealed the earlier version, and after
settlement negotiations with several of the parties, Multitrade agreed
to ask VDAPC to amend the permit significantly by, inter alia, delet-
ing the use of coal as a permitted fuel. As a result of the settlement
negotiations, some of the parties withdrew their petitions. With re-
spect to the other petitions, the Administrator dismissed them with-
out prejudice on January 21, 1992, since the issues raised in the
petitions would likely become moot by reason of Multitrade's stated
intention to seek substantial changes in the permit. The Adminis-
trator remanded the permit to the State for whatever proceedings
it deemed appropriate in response to Multitrade's request for permit
changes. Subsequently, in accordance with Multitrade's request,
VDAPC amended the permit to delete coal as a fuel option and
to include a restriction preventing the facility from operating until
certain specific offsets are obtained and made enforceable. The
amended version of the permit was issued on February 21, 1992.

West Petition: Margaret West challenges the amended permit
because it does not contain a provision that was in the original
version. The omitted provision required recordkeeping of wood ship-
ments.¹ VDAPC represents that the provision was left out by mistake

¹The omitted provision reads as follows:

The permittee shall maintain records of all wood shipments, in-
cluding origin of shipment and a certification that the wood fuel
meets the definition of wood as stated in Specific Condition 21
of the revised permit. These records shall be available on site
for inspection by Department personnel and shall be kept current
for the most recent three-year period. (Section 120-02-11 of State
Regulations.)

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26 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

and, upon completion of the appeal, it will add language to the
amended permit that is almost identical to the omitted language.
VDAPC also points out that the amended permit still contains Spe-
cific Conditions 21 and 22, which together (i) define the type of
wood that may be burned at the facility, (ii) require that wood burned
at the facility be analyzed, upon the request of VDAPC, and (iii)
specify that records of the analyses be kept current for the most
recent three-year period. Moreover, we note that the omitted permit
provision relates wholly to State-law concerns unrelated to the appli-
cable federal PSD regulations at 40 CFR § 52.21. In light of these
considerations, we conclude that Ms. West's petition does not identify
any factual or legal errors or any policy considerations or exercises
of discretion that warrant review. Her petition is therefore denied.²

Phillips Petition: VDAPC received a copy of a petition for review
from a citizen named Dale Phillips. VDAPC has included a copy
of the Phillips petition with its response to the West petition and
has responded to the issues raised in the Phillips petition. The peti-
tion is in the form of a letter addressed to this Agency's Adminis-
trator at the Headquarters address and dated March 20, 1992. Other
than the copy forwarded by VDAPC, however, there is no indication
that the Agency ever received the letter, and the Agency did not
receive VDAPC's copy of the petition until well after the deadline
for filing the petition had passed. Accordingly, Mr. Phillips's petition
is denied as untimely.

As an alternative holding, we conclude that Mr. Phillips's petition
must be denied on the merits. The petition raises two issues, the
first of which is the same issue raised by Ms. West, discussed above.
The second issue relates to Specific Condition 34 of the revised per-
mit, which provides as follows:

On September 18, 1991, the Aqualon Company
(“Aqualon”) notified the Department that Aqualon
had permanently ceased all air emissions of any pol-
lutant regulated under the federal Clean Air Act,
the Virginia Air Pollution Control Law and the regu-
lations promulgated under those laws, from four boil-
ers (the “Boilers”) located at the corner of Hercules
Road and Winston Churchill Drive in Hopewell, Vir-

²Because curing the omission will only involve a minor amendment to the permit
to address a matter under State, not federal, law, the permit may reissue without
further recourse to the Agency.

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MULTITRADE LIMITED PARTNERSHIP 27

ginia. On September 20, 1991, the Department noti-
fied Aqualon Company that the shut down of the
Boilers was state enforceable. Multitrade Limited
Partnership shall not commence commercial oper-
ation of the facility described in this permit until
the shut down of the boilers is federally enforceable,
provided however, that such commercial operation
may commence if the shut down of the Boilers has
not become federally enforceable within twelve (12)
months after the date of this permit.

(Permit, Specific Condition 34, p.10.)

In his petition, Mr. Phillips complains that Specific Condition
34

is very confusing and seems contradictory to me. The
revised permit does not make it clear that the offsets
at Aqualon are required to be made federally enforce-
able. I request that this matter be clarified before
the permit becomes final and the offsets be made
federally enforceable.

It is important to emphasize at the outset that neither the Clean
Air Act nor its implementing regulations requires Specific Condition
34 to be in the permit. Specific Condition 34 was placed in the
permit at the request of the permittee pursuant to a settlement
agreement among Multitrade, the Department of the Interior, and
various environmental groups. Neither EPA nor VDAPC was a party
to the settlement agreement. In addition, no one is contending that
Specific Condition 34 does not implement the settlement agreement
faithfully: the settlement agreement, like Specific Condition 34, pro-
vides that Multitrade may not commence commercial operation of
the facility until the Aqualon shut-downs are federally enforceable,
provided however that within a year after the permit amendment,
Multitrade may commence commercial operations even if the Aqualon
shut-downs have not been made federally enforceable.³

³The settlement agreement provides as follows:

Multitrade shall not commence commercial operation of the Facil-
ity until after the Consent Agreement or other mechanism to
prohibit the Aqualon emissions from the Boilers has become state
enforceable and federally enforceable, provided however, that
Multitrade may commence commercial operation if the state-en-
forceable prohibition on Aqualon emissions from the Boilers has

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28 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

not become federally enforceable within twelve (12) months after
the permit for the Facility has been changed in accordance with
Paragraph 1 of this Agreement.

(Quoted in VDAPC's Response, at 4.)

As we read the petition, petitioner's principal concern appears
to be that the permit provision does not ensure that the Aqualon
shut-downs will be federally enforceable by the time Multitrade com-
mences commercial operation of the facility. Petitioner is apparently
disturbed by the possibility that, after 12 months, the permit would
allow Multitrade to commence commercial operation even if the
Aqualon shut-downs have not become federally enforceable. This is
not a matter that can, or should, be rectified by us, for the plain
terms of the settlement agreement clearly contemplate that possibil-
ity, and Specific Condition 34 merely mirrors the settlement agree-
ment. Since EPA is not a party to the agreement, and in the absence
of some reason for concluding that the permit is unlawful, petitioner's
concern about federal enforceability does not provide any justification
for reviewing the permit provision. For instance, petitioner has not
shown or alleged any basis for believing that Multitrade's permit
will violate federal law if the Aqualon shut-downs are not a federally
enforceable condition to Multitrade's permit. (We note for the record
that VDAPC is of the opinion, as expressed in its response to the
petition, that the Aqualon shut-downs are federally enforceable, e.g.,
through the State Implementation Plan.) Nor has petitioner given
us any other reason to review this permit provision. Accordingly,
we conclude that Mr. Phillips's petition does not identify any factual
or legal errors or any policy considerations or exercises of discretion
that warrant review. His petition is therefore denied, and the permit
is final for purposes of federal law.

So ordered.

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