Puerto Rico Electric Power Authority (Cambalache Combustion Turbine Project)

Plain-English summary

Ciudadanos en Defensa del Ambiente petitioned for review of a PSD permit issued to the Puerto Rico Electric Power Authority for a 248-megawatt combustion-turbine generating station in Arecibo, Puerto Rico. CEDDA raised environmental-justice, meteorological-data, prior-violations, future-expansion, and pre-permit-construction concerns. The Environmental Appeals Board held that the petition did not identify specific permit conditions or explain how the Region’s responses were clearly erroneous, and denied review.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.13, 124.19, and 124.20; 42 U.S.C. § 7475
• Outcome: Review of the PSD permit was denied.
• Key point: A permit-review petition must identify specific objections and explain why the Region’s response was clearly erroneous or otherwise warrants review.

Full text (EPA EAB public release)

PUERTO RICO ELECTRIC POWER AUTHORITY 253

IN RE PUERTO RICO ELECTRIC
POWER AUTHORITY

PSD Appeal No. 95-2
ORDER DENYING REVIEW

Decided December 11, 1995

Syllabus

Ciudadanos en Defensa del Ambienté (Citizens in Defense of the Environment, hereafter
“CEDDA”) seeks review of a final prevention of significant deterioration (“PSD”) permit issued
by U.S. EPA Region II to the Puerto Rico Electric Power Authority (PREPA for construction of
an electric generating station. CEDDA’s petition purports to raise issues concerning environ-
mental justice, adequacy of the’ meteorological data used by the Region, PREPA’s history of
alleged environmental violations, PREPA’s alleged plans to expand the plant, and construction
activities undertaken by PREPA prior to issuance of the permit.

Held: CEDDA’s petition is so lacking in specificity that it does not meet the standards nec-
essary to invoke Board review of the Region’s decision under 40 C.F.R. § 124.19. CEDDA has
provided no support for its contention that the lack of an epidemiology study violates the
President’s Executive Order on environmental justice and the U.S. Constitution, or that the
Region erred in addressing environmental justice issues. CEDDA has established no error in the
manner in which the Region utilized the meteorological data gathered in preparing the permit.
CEDDA has not shown that any alleged history of violations by PREPA are linked to any condi-
tion of the present permit. Consideration of any alleged future plans by PREPA to expand the
facility are premature, and therefore not appropriate for consideration in this proceeding.
Finally, CEDDA has not demonstrated that the Region erred in investigating PREPA’s pre-permit
construction activities, nor has CEDDA provided any information that non-allowable activities
occurred. Even if they had, such activities would normally be addressed in the context of an
enforcement action. Review is therefore denied.

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

Opinion of the Board by Judge McCallum:

Ciudadanos en Defensa del Ambienté (Citizens in Defense of the
Environment, hereafter “CEDDA”) petitions the Board for review of
U.S. EPA Region II’s decision to issue a final prevention of significant
deterioration (“PSD”) permit and approval to construct to the Puerto
Rico Electric Power Authority (“PREPA”), pursuant to Clean Air Act
§ 165, 42 U.S.C. § 7475. The permit authorizes PREPA to construct the

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254 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Cambalache Combustion Turbine Project (“CCTP”), a 248-megawatt
combustion turbine simple cycle electric generating station. The CCTP
will be constructed on a 52-acre site in Cambalache, in the munici-
pality of Arecibo, Puerto Rico. The Region issued its final decision
granting the permit on July 31, 1995. CEDDA timely filed its petition
for review on September 5, 1995.)

CEDDA’s two-page letter petition purports to raise several issues
for review. CEDDA contends that PREPA and the Department of
Health of the Commonwealth of Puerto Rico should have prepared an
epidemiology study of the area around the proposed plant, and that
failure to do so, or alternatively to impose the burden upon CEDDA
to perform a study, violates CEDDA’s civil and human rights, in con-
travention of President Clinton’s Executive Order on environmental
justice? and the U.S. Constitution. Petition at 1-2. CEDDA also con-
tends that: meteorological data relied upon by the Region in reaching
its permit decision do not reflect “reality”; that PREPA has a history of
violations that have harmed the community; that PREPA intends to
expand the permitted operation to add another 150 megawatts; and
that the Region unlawfully allowed PREPA to begin construction of the
plant before receiving a permit. Petition at 2.

' PREPA filed a “Motion to Request Denial of Petition for Review” on September 13, 1995,
alleging inter alia that the petition should be dismissed as untimely. The Region states that “in
light of the computation of time requirements * * * Region II does not challenge the timeliness”
of the petition. Region's Response to Petition at 2, n.1. We agree with the Region. The Region
served its decision on CEDDA by mail on July 31, 1995. In accordance with 40 CER. § 124.19,
CEDDA had thirty days within which to file its petition. However, under 40 C.F.R. § 124.20(d)
three days are added to the filing period because the Region served the decision by mail. The
thirty-third day after service fell on Saturday, September 2, and the following Monday
(September 4) was Labor Day, a legal holiday. Therefore, CEDDA had until Tuesday, September
5, to file its petition. See 40 C.F.R. § 124.20(c) (when final day of filing period falls on weekend
or legal holiday, time period is extended to next working day). We therefore deny PREPA’s
motion to deny the petition on the ground that it is untimely.

’ The President's Executive Order 12898 regarding “Federal Actions to Address Environ-
mental Justice in Minority Populations and Low-Income Populations” requires that:

To the greatest extent practicable and permitted by law * * *

each Federal agency shall make achieving environmental jus-

tice part of its mission by identifying and addressing, as

appropriate, disproportionately high and adverse human

health or environmental effects of its programs, policies, or

activities On minority populations and low-income popula-

tions in the United States.
Executive Order § 1-101, 59 Fed Reg. 7629 (Feb. 16, 1994). The Board recently addressed the
effect of the Executive Order on the Agency's permitting program under the Resource
Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., in In re Chemical Waste Management
of Indiana, 6 E.A.D. 66 (EAB 1995).

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PUERTO RICO ELECTRIC POWER AUTHORITY 255

At the Board’s request, the Region submitted a response to the
petition together with relevant portions of the administrative record
relied upon by the Region in reaching its decision. The Region argues
that the petition fails to meet the standards necessary to invoke Board
review of its decision, as set forth at 40 C.F.R. § 124.19. For the rea-
sons explained below, we agree and must therefore deny the petition.

Under the regulations that govern the Board’s review of PSD per-
mit decisions, review will not be granted unless the decision is based
on either a clearly erroneous finding of fact or conclusion of law, or
involves an important matter of policy or exercise of discretion that
warrants review. 40 C.F.R. § 124.19(a); see In re Masonite Corp., 5
E.A.D. 551, 557 (EAB 1994); In re Essex County (NJ) Resource
Recovery Facility, 5 E.A.D. 218, 223 (EAB 1994). The preamble to
§ 124.19 states that the Board’s power of review “should be only spar-
ingly exercised,” and that “most permit conditions should be finally
determined at the Regional level * * *.” 45 Fed. Reg. 33,412 (May 19,
1980). The burden of demonstrating that review is warranted rests
with the petitioner who challenges the Region’s permit decision. See
40 C.F.R. § 124.19(a); Masonite Corp. at 8; Essex County at 6-7.

Further, a petition for review must include “a statement of the rea-
sons supporting that review, including a demonstration that any issues
being raised were raised during the public comment period * * *.” 40
C.F.R. § 124.19(a). The Board has explained that in order to establish
that review of a permit is warranted, § 124.19(a) requires a petitioner
to both state the objections to the permit that are being raised for
review, and to explain why the Region’s previous response to those
objections (i.e., the Region’s basis for the decision) is clearly erro-
neous or otherwise warrants review. in re Genesee Power Station L.P.,
4 E.A.D. 832, 866 (EAB 1993) (citing In re LCP Chemicals — New York,
4 E.A.D. 661, 664 (EAB 1993)); In re SEI Birchwood, Inc., 5 E.A.D. 25,
27 (EAB 1994).

While the Board endeavors to construe petitions broadly, particu-
larly when they are filed by persons unrepresented by legal counsel,
the petition in this instance is so lacking in specificity as to why the
Region’s decision is erroneous that the petitioner has provided the
Board with no basis for review. See Genesee at 867-868, see also In re
Inter-Power of New York, 5 E.A.D. 130, 153 (EAB 1994) (mere allegation
of error does not satisfy requirements of § 124.19). Furthermore, the
petition does not identify any specific permit conditions being chal-
lenged. Genesee at 867-868 (quoting LCP Chemicals at 665 (“It is not this
Board’s obligation to search through the permit for the specific permit
conditions that fall into [petitioner’s] general category of objections.”)).

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256 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Petitioner’s first objection concerns the alleged failure of PREPA
and the Commonwealth’s Department of Health to conduct an epi-
demiology study. Petition at 1. Petitioner states that local doctors pro-
vided testimony at the public hearing concerning the treatment of var-
ious respiratory diseases that will allegedly be exacerbated by the
CCTP, yet no epidemiology study was prepared. Petition at 1.
Petitioner asserts in a conclusory fashion that the lack of an epidemi-
ology study, or placing the burden on petitioner to perform a study,
violates the President’s Executive Order on environmental justice and
the U.S. Constitution. The petition does not explain exactly how the
Region’s decision contravened any applicable requirements of the
Executive Order or the Constitution, nor does the petition identify any
permit conditions that are implicated by this objection. The only spe-
cific reference to epidemiological studies in the Executive Order
relates to federal agencies’ research activities: “Environmental human
health research, whenever practicable and appropriate, shall include
diverse segments of the population in epidemiological and clinical
studies * * .” Executive Order § 3-301(a), 59 Fed. Reg. at 7631 (empha-
sis added). This mandate does not appear to implicate the type of
activity (permit issuance) undertaken by the Region in this case.

Moreover, the Region has explained that it responded fully to
environmental justice issues raised during the comment period by
ensuring public participation in the permitting process and by per-
forming a comprehensive environmental justice analysis. This includ-
ed merging and analysis of data from three data bases in the Region’s
Geographic Information System (GIS) data library. Response to
Petition at 10-11. Specifically, the Region explained that:

[T]he following data were utilized: (1) per capita
income from the 1990 Census Summary Tape files; (2)
source location data contained in the 1990 Toxic
Release Inventory; and (3) source location data con-
tained in the Permit Compliance System (PRASA facil-
ities). These data were subsequently geographically

• The Region contends that the petitioner's claims concerning constitutional violations were
  not preserved for review because they were not raised during the public comment period.
  Response to Petition at 6. Because petitioner’s constitutional claims appear to be interwoven
  with its environmental justice claim, and environmental justice issues were raised and addressed
  during the public comment period, it is unclear whether the constitutional claims are being
  asserted as a distinct basis for objection. In any event, to the extent that they are, they are too
  vague to justify review. In addition, as the Region has stated, the constitutional claims were not
  raised during the public comment period by any party, and therefore petitioner lacks standing
  to raise them in its petition for review.

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PUERTO RICO ELECTRIC POWER AUTHORITY 257

plotted for the Arecibo Municipality and for the Island
of Puerto Rico as a whole. The location of the pro-
posed facility, maximum emission impact data and
monitored meteorological data were then plotted on
maps to determine: (1) if the proposed facility was
located in a lower income area; and (2) if the maxi-
mum emission impacts occurred in areas that were
either lower than the Island’s or the Arecibo
Municipality’s per capita income average.

Id. (citations to administrative record omitted). On the basis of its
analysis, the Region concluded that the CCTP would cause no dis-
proportionate adverse health impacts to lower-income populations.
Id. at 11. The petition does not even facially demonstrate that the
Region’s methods or conclusions were wrong. Accordingly, review on
the basis of this issue must be denied. See SEI Birchwood at 27.4

Petitioner next contends that “the meteorological data used did
not take into consideration that the plant was not built yet, and there-
fore they do not represent the reality.” Petition at 2.° It is unclear from
this statement precisely how the meteorological data relied upon by
the Region were inadequate. The Region has explained, and the record
supports, that while meteorological data were necessarily gathered
prior to construction of the facility (because the permit at issue is a
pre-construction permit), the air quality modeling performed by the
Region (in which the meteorological data are incorporated) does sim-
ulate the presence of the facility post-construction, thereby ensuring
that changes in meteorological conditions caused by the new structure
are taken into account. Response to Petition at 15-16. The Region’s
response and the administrative record refute petitioner’s unsupported
allegation that the presence of the structure was not taken into con-

• The Region asserts that it addressed environmental justice issues in an “appropriate man-
  ner” in accordance with the Board’s decision in In re Chemical Waste Management of Indiana,
  Inc., 6 E.A.D. 66 (EAB 1995). Because the petitioner has not made even a facial showing of non-
  compliance with the Executive Order, it is unnecessary for us to address at length how the
  Executive Order affects PSD permit decisions, or the extent to which the Region's analysis ful-
  filled any applicable requirements of the Executive Order.

The Region suggests that this precise issue was not preserved for review. However, the
Region acknowledges that comments were received concerning the Region’s air quality model-
ing and the general location for collection of meteorological data, and that it responded to such
comments. Response to Petition at 5. Because the issue of meteorological data was generally
raised during the comment period, and the Region's response to comments adequately address-
es the concerns raised in the petition, we decline to deny review on the basis that this issue was
not preserved for review.

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258 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

sideration. Because petitioner has provided no other basis for review-
ing the Region’s analysis, review of this issue must be denied.

Petitioner alleges that PREPA has a “history of violations * * *
which have caused much suffering” to the community. Petition at 2.
Petitioner does not describe what these alleged “violations” were, or
how such violations may be linked to a condition of the present per-
mit. The Board has explained that “generalized concerns regarding
[the permittee’s] past [regulatory] violations do not, without ‘more,
establish a link to a ‘condition’ of the present permit * * * and thus do
not provide a jurisdictional basis for the Board to grant review.” In re
Laidlaw Environmental Serv., 4 E.A.D. 870, 882-83 (EAB 1993).
Review of this issue must therefore be denied.

Petitioner also claims that PREPA expressed its intent, via a news-
paper article dated August 15, 1995, to expand operation of the plant
to add another 150 megawatts.® Petition at 2. The Region argues that the
alleged statement described by petitioner does not provide any reason
to believe an expansion is intended, and that it has confirmed with
PREPA that no imminent changes in the facility are planned. Response
to Petitions at 19. The Region further argues that any such expansion
that affected the conditions of the present permit would be subject to
PSD permit modification requirements, including the Part 124 public
review and comment requirements. Id. The existence of these require-
ments means that the petitioner will have an opportunity to comment
on any future expansion if and when it occurs.’ Accordingly, any con-
sideration of what PREPA might or might not do in terms of future
expansion of the facility is premature and not appropriate for consid-
eration in this proceeding. Review of this issue is therefore denied.

Petitioner lastly contends that the Region “violatled] its own law”
by allowing PREPA to commence construction of the CCTP before the

° The article was not provided with the petition, although the petition states that a copy
was included. Petition at 2.

The Region contends that this issue was not raised during the public comment period, and
therefore was not preserved for review. However, because the alleged article appeared after the
close of the public comment period, the Region acknowledges that the issue might not have
been “reasonably ascertainable” during the public comment period. Response to Petition at 5-6;
see 40 C.F.R. § 124.13 (commenters obliged to raise reasonably ascertainable issues during pub-
lic comment period), We therefore decline to deny review on the basis that the issue was not
preserved for review.

” PREPA does not expressly deny that it might at some future time expand the facility, but
states that “it is obvious that [any expansion] will constitute a major modification to the facility
which will trigger a new PSD review process.” PREPA’s Motion to Request Denial at 5.

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PUERTO RICO ELECTRIC POWER AUTHORITY 259

permit was issued. Petition at 2. The petition does not state, howev-
er, precisely what activities PREPA allegedly undertook prior to
issuance of the permit that violated any applicable law or regulation.
The Region has explained that in response to comments on this issue
it conducted an inspection of the CCTP site and determined that
PREPA was engaged only in activities that are allowable under the
Clean Air Act and implementing regulations, such as site clearing and
ground preparation. Response to Petition at 19-20. Petitioner has not
explained how the Region’s inspection and the conclusions drawn
therefrom are in error; nor has petitioner provided any information to
support its claim that PREPA was engaged in non-allowable activities
prior to permit issuance, much less provided any reason for believing
that engaging in any such activities would require changes in the con-
ditions of the permit.? Review on the basis of this issue must therefore
be denied. See SEI Birchwood at 27.

For the foregoing reasons, the Board hereby denies CEDDA’s
petition for review of Region II's decision to issue a final PSD permit
to PREPA.

So ordered.

8 Moreover, even if PREPA had engaged in unauthorized preconstruction activities, those
activities would be matters normally addressed by the Region in an enforcement action against
PREPA for violating the statutory prohibition against commencing construction of a major air pol-
lution source prior to obtaining a PSD permit. CAA § 165(a)(1), 42 U.S.C. § 7475(a)(1) (“No major
emitting facility on which construction is commenced after August 7, 1977, may be constructed
in any area to which this part applies unless—(1) a permit has been issued for such proposed
facility in accordance with this part * * *."). Thus, absent facts suggesting that the conditions of
the permit would be affected in some manner by unauthorized preconstruction activities, there
is no reason to consider those activities in a permit proceeding.

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