Shintech, Inc.

Plain-English summary

Fourteen organizations petitioned the EAB to review Louisiana's PSD permit for Shintech's proposed polyvinyl chloride production complex in Convent, Louisiana. The Board asked the petitioners to explain why it had jurisdiction, given that Louisiana was an approved state for PSD permitting. The Board concluded that Part 124 did not authorize it to review this state-issued permit. It dismissed the appeal for lack of jurisdiction without deciding the merits of the petitioners' objections.

Decision snapshot

• Cited authorities: 40 C.F.R. § 124.19, 40 C.F.R. § 124.1(e), and 40 C.F.R. § 52.986.
• Outcome: The appeal was dismissed for lack of jurisdiction.
• Key point: The EAB could not review a PSD permit issued by an approved state when Part 124 expressly excluded that category of permit.

Full text (EPA EAB public release)

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

In re: )
)
Shintech, Inc. ) PSD Appeal No. 97-11
)
Permit No. PSD-LA-604 )
)

                     ORDER DISMISSING APPEAL

 On June 30, 1997, the Environmental Appeals Board ("Board")

received a Petition for Review filed jointly by fourteen
organizations (collectively "Petitioners"). Petitioners
requested the Board to review, pursuant to the Board's authority
under 40 C.F.R. § 124.19, a Prevention of Significant
Deterioration ("PSD") permit decision issued by the Louisiana
Department of Environmental Quality ("LDEQ") to Shintech, Inc.
for the construction and operation of a polyvinyl chloride
production complex in Convent, St. James Parish, Louisiana.
On July 3, 1997, the Board issued an order directing the
Petitioners to submit a brief clarifying the basis for their
assertion that the Board has jurisdiction to review this permit
under 40 C.F.R. § 124.19. In its order, the Board noted that 40
C.F.R. § 124.1(e) provides that "Part 124 does not apply to PSD

 1 Petitioners are the St. James Citizens for Jobs and the

Environment, Louisiana Environmental Action Network, Neighbors
Assisting Neighbors, Sierra Club, St. John Citizens for
Environmental Justice, St. Charles Environmental Coalition, Gulf
Coast Tenants Organization, Louisiana Citizen Action, Concerned
Citizens of Iberville Parish, Action Against Waste and to Restore
the Environment, Ascension Parish Residents Against Toxic
Pollution, Save Our Selves, Delta Greens and River Area Planning
Group.

permits issued by an approved State," and that Louisiana, as
reflected in 40 C.F.R. § 52.986, is an "approved State" for
purposes of PSD permitting.

 On August 6, 1997, the Board received Petitioners' brief

addressing the issue of jurisdiction. Having considered
Petitioners' contentions regarding jurisdiction, the Board
concludes that it lacks the authority to review this permit, and
the Board therefore dismisses Petitioners' appeal for lack of
jurisdiction.
In their brief, Petitioners urge the Board to disregard the
"approved" status of Louisiana's PSD program based on various
alleged defects connected with an EPA final rule, effective
November 13, 1995, whereby St. James Parish, Louisiana was
redesignated from nonattainment to attainment with respect to the
ozone National Ambient Air Quality Standard. See 60 Fed. Reg.
47,280 (1995). The Board, however, has no authority to reexamine
the validity of the rule whereby EPA redesignated St. James
Parish to attainment for ozone. The Board's authority in the
review of PSD permits is clearly defined by, and limited by, 40
C.F.R. Part 124. What Petitioners seek is for the Board to
decide that it has the authority to review challenges to certain
PSD permits issued by an approved State despite the express
limitation of 40 C.F.R. § 124.1(e) to the contrary. This we
cannot do.

 The Board's permit review authority is defined and limited

by the terms of the applicable regulations, and the permit
decision that Petitioners seek to appeal lies clearly outside the
bounds of that authority. PSD Appeal No. 97-11 is therefore
dismissed for lack of jurisdiction.

 So ordered.

                           ENVIRONMENTAL APPEALS BOARD



                           By:
                                  Edward E. Reich
                           Environmental Appeals Judge

Dated: AUG 12 1997

 2 In so holding, we express no view concerning the merits of

the arguments presented by Petitioners in their Petition for
Review, or concerning the merits of any arguments that
Petitioners may have raised elsewhere within the Agency under
other review provisions in connection with the facility described
in this PSD permit.

 3 Petitioners also intimate in their brief that the Board has

jurisdiction to review this permit based on Clean Air Act section
167 ("Enforcement"), which authorizes the EPA Administrator to
take measures ("including issuance of an order, or seeking
injunctive relief") to prevent construction of a major emitting
facility that does not comply with PSD requirements. See
Petitioners' Brief at 6-7. The Administrator's enforcement
authority under section 167 has not, however, been delegated to
this Board.

                    CERTIFICATE OF SERVICE

 I hereby certify that copies of the foregoing Order

Dismissing Appeal in the matter of Shintech, Inc., PSD Appeal No.
97-11, were sent to the following persons in the manner
indicated:

By first-class mail: Lisa W. Lavie
Tulane Environmental Law Clinic
6329 Freret Street
New Orleans, LA 70118-5670

                            Meredith Lieux
                            Louisiana Department of
                              Environmental Quality
                            Office of Legal Affairs
                            P.O. Box 82282
                            Baton Rouge, LA 70884-2282



                            [illegible signature]
                                  Mildred T. Johnson
                                  Secretary

Dated:
AUG 12 1997