ConAgra Soybean Processing Company

Read the official release (epa.gov)

Plain-English summary

ConAgra Soybean Processing Company sought a federal Prevention of Significant Deterioration permit for a soybean oil extraction plant in Indiana. Consolidated Grain and Barge Company and Valley Watch challenged the permit's treatment of ozone, particulate matter monitoring, PSD increment consumption, and additional impacts. The Environmental Appeals Board concluded that the petitioners had not shown clear error or provided a sufficient basis for review on those issues. The Board also found that the permit's Condition 38 should no longer cite federal PSD law after the permitting agency abandoned that law as the condition's basis. The Board denied review on the other issues and ordered the reference to 40 C.F.R. § 52.21(k) removed from Condition 38.

Decision snapshot

• Cited authorities: 42 U.S.C. § 7475; 40 C.F.R. §§ 50.4, 50.6, 52.21, 81.315, and 124.19.
• Outcome: Review denied on the challenged PSD issues, with Condition 38 modified to remove its reference to 40 C.F.R. § 52.21(k).
• Key point: EAB review requires a showing of clear error or an important policy issue, and a permit condition may be revised when its stated federal-law basis is abandoned.

Full text (EPA EAB public release)

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



                                  )

In re: )
)
)
ConAgra Soybean Processing Company ) PSD Appeal Nos.
) 98-27 & 98-28
)
PSD Permit No. CP-129-8541-00039 )
)

                   ORDER DENYING REVIEW

 On September 14, 1998, Consolidated Grain & Barge Company

("CGB"), and Valley Watch, Incorporated ("VWI"), filed petitions

for review of a federal Prevention of Significant Deterioration

("PSD") permit (the "Permit") issued to ConAgra Soybean

Processing Company ("ConAgra") by the Indiana Department of

Environmental Management ("IDEM").1 The Permit would provide pre-

construction authorization under the federal PSD program, see

Clean Air Act § 165, 42 U.S.C. § 7475 ("CAA"); 40 C.F.R. § 52.21,

for ConAgra’s proposed soybean oil extraction plant. The plant

is expected to have a grain-receiving capacity of 3,000 tons per

 1
  The Regional Administrator of EPA Region V delegated

authority to the State of Indiana to implement and enforce the
federal PSD program in Indiana. See 46 Fed. Reg. 9580 (Jan. 21,
1981). The permits IDEM issues pursuant to that delegation are
considered federal permits subject to review by the Environmental
Appeals Board (the "Board") pursuant to 40 C.F.R. § 124.19. See
In re RockGen Energy Ctr., PSD Appeal No. 99-1, slip op. at 3 n.1
(Aug. 25, 1999), 8 E.A.D. __; 40 C.F.R. § 124.41 (terms "EPA" and
"Regional Administrator" mean the delegate agency when a state
exercises delegated authority to administer PSD permit program);
45 Fed. Reg. 33,290, 33,413 (1980).
hour (4,052,912 tons per year), a soybean-crushing capacity of

6,819 tons per day, a planned load-out capacity of grains without

processing of 1,500,000 tons per year, and a soybean oil

manufacturing capacity of 497,818 tons per year. See Permit at 1

(Aug. 14, 1998). It would emit 937 tons per year of volatile

organic compounds ("VOCs"), 91 tons per year of particulate

matter ("PM10"), 83.6 tons per year of nitrogen oxides ("NOx"), 155

tons per year of carbon monoxide ("CO"), and 39.8 tons per year

of sulfur dioxide ("SO2"). See Permit, Appendix C, Air Quality

Analysis, at 2, tbl. 1 ("AQA").

 Petitioners generally seek review of four aspects of

ConAgra’s Permit, as outlined below. See CGB Petition for Review

98-27; VWI Petition for Review 98-28 ("PSD App. 98-27" and "PSD

App. 98-28"). Upon receipt of the Petitions for Review, the

Board requested responses from IDEM, which were filed on November

2, 1998 ("IDEM Resp. 98-27" and "IDEM Resp. 98-28"). ConAgra

also filed responses to the Petitions for Review on November 9,

1998 ("ConAgra Resp. 98-27" and "ConAgra Resp. 98-28"). CGB

subsequently sought and was granted leave by the Board to file a

reply ("CGB Reply 98-27") to IDEM’s and ConAgra’s responses.2

 2
  See Order Granting Petitioner Leave to File Reply (EAB,

Nov. 20, 1998). The Board’s Order limited CGB’s reply to those
issues identified in its motion. Id. at 2. CGB’s motion
identified two issues: 1) IDEM’s use of significant impact levels
for ozone, and 2) ConAgra’s argument to grandfather the permit
application with respect to ozone attainment requirements. See
CGB Motion for Leave to File Reply, ¶ 4 (Nov. 16, 1998). Upon
examination of CGB’s reply, the Board finds that the Reply also
raises new arguments that were beyond the scope of the Order and
that were not raised in the Petition for Review. Accordingly,
the Board declines to review these new issues that were not
(continued...)

                           - 2 -

To obtain Board review of a PSD permit decision, a

petitioner must, as a threshold matter, have standing to

challenge the permit, and must appeal issues that have been

properly preserved for review or were not reasonably

ascertainable. 40 C.F.R. § 124.19(a). The Petitioners clearly

have standing to appeal the permit decision in this case because

they filed comments on the draft permit and participated in the

public hearing. See IDEM Resp. 98-27 at 1; IDEM Resp. 98-28 at

1; ConAgra Resp. 98-27 at 2; ConAgra Resp. 98-28 at 2; PSD App.

98-27 at 2; PSD App. 98-28 at 2. On the record before us, the

issues raised in the Petitions for Review were previously raised

in comments to IDEM on the draft permit, see Permit, Addendum to

Technical Support Document ("ATSD") (summarizing "significant"

comments and providing responses) and thus, are properly before

us.3

   2
  (...continued)

properly raised on appeal. See In re Knauf Fiber Glass, GmbH,
PSD Appeal Nos. 98-3 through 98-20, slip op. at 8 n.9 (EAB, Feb.
4, 1999), 8 E.A.D. __ (new issues raised for the first time at
the reply stage of proceedings are equivalent to late filed
appeals and must be denied on the basis of timeliness).
3
However, VWI and CGB filed a number of additional motions
seeking leave either to reply to IDEM’s and ConAgra’s responses,
or to supplement replies filed which would raise additional
issues not preserved for review. See, e.g., VWI’s Motion Seeking
Leave to File a Reply (Dec. 1, 1998) (denied without prejudice by
Order dated December 11, 1998, Order Denying Petitioner Leave to
File Reply (EAB, Dec. 11, 1998)); VWI’s Amended Motion Seeking
Leave to File a Reply (Jan. 14, 1999); CGB’s Motion Seeking Leave
to Supplement Reply (Apr. 30, 1999); VWI’s Motion Seeking Leave
to Supplement Amended Motion (May 10, 1999). Both IDEM and
ConAgra filed motions in opposition.

 Upon consideration of these motions, we deny those motions

filed by Petitioners which have not already been ruled on by
(continued...)

                            - 3 -

To obtain review on the merits, a petitioner must

demonstrate that the permit, or, more precisely, a permit

condition, is based on:

      (1)   A finding of fact or conclusion of law
            [that] is clearly erroneous; or

      (2)   An exercise of discretion or an
            important policy consideration [that]
            the Environmental Appeals Board should,
            in its discretion, review.

40 C.F.R. § 124.19(a); accord, e.g., In re AES Puerto Rico L.P.,

PSD Appeal Nos. 98-29 through 98-31, slip op. at 6 (EAB, May 27,

1999), 8 E.A.D. __; In re Hawaii Elec. Light Co., PSD Appeal Nos.

97-15 through 97-23, slip op. at 8 (EAB, Nov. 25, 1998),

8 E.A.D. __; In re EcoElectrica, L.P., PSD Appeal Nos. 96-8 & 96-

13, slip op. at 7 (EAB, Apr. 8, 1997), 7 E.A.D. __. The Board’s

power of review is discretionary, and the Board is guided by the

preamble to section 124.19 which states that the Board’s power

 3
  (...continued)

separate order. The rules governing petitions for review do not
contemplate further briefing by petitioners, except when the
Board grants review of a petition. See 40 C.F.R. § 124.19(c).
Although the Board will exercise its discretion to allow
additional briefing in appropriate cases prior to deciding to
grant review, in this instance the Board has determined that the
supplemental briefing does not aid in its deliberation of the
Petitions for Review. See In re Kawaihae Cogeneration Project,
PSD Appeal Nos. 96-9 through 96-11, 96-14 & 96-16, slip op. at 7
n.8 (EAB, Apr. 28, 1997), 7 E.A.D. __. In addition, as noted
above, these motions raise several additional issues that were
not raised in the Petitions for Review, and Petitioners have
failed to provide adequate justification for the late date at
which they have attempted to raise them. See supra note 2.

                          - 4 -

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); accord

AES Puerto Rico, slip op. at 6, 8 E.A.D. __.

 The burden of demonstrating that review is warranted rests

with the petitioner challenging the permit decision. 40 C.F.R.

§ 124.19(a); accord, e.g., AES Puerto Rico, slip op. at 7, 8

E.A.D. ; Hawaii Elec. Light Co., slip op. at 8, 8 E.A.D. ;

Ecolectrica, slip op. at 7, 7 E.A.D. __. We have explained that

in order to establish that review of a permit is warranted,

section 124.19(a) requires that a petitioner both state the

objections to the permit that are being raised for review and

explain why the permit issuer’s previous response to those

objections (i.e., the decision maker’s basis for the decision) is

clearly erroneous or otherwise warrants review. See Kawaihae

Cogeneration Project, slip op. at 10, 7 E.A.D. __; see also In re

Puerto Rico Elec. Power Auth., 6 E.A.D. 253, 255 (EAB 1995); In

re Genesee Power Station, L.P., 4 E.A.D. 832, 866 (EAB 1993).

 We address each of the Petitioners’ contentions, and IDEM’s

and ConAgra’s responses, in the paragraphs below.

 1.   National Ambient Air Quality Standard for Ozone



 First, Petitioners generally allege that ConAgra’s Permit

was improperly issued by IDEM because it fails to demonstrate

                           - 5 -

that the proposed facility will not cause or contribute to an

exceedance of the National Ambient Air Quality Standard ("NAAQS")

for ozone.4 See PSD App. 98-27 at 4-18; PSD App. 98-28 at 4-5.

In response, IDEM and ConAgra contend that the proposed facility

will not cause or contribute to an exceedance of the ozone NAAQS

because the source impact analysis conducted predicts a maximum

one part per billion increase in the ambient air concentrations

of ozone B an amount that IDEM considers de minimis or

insignificant. See IDEM Resp. at 5-6; ConAgra Resp. at 3, Att. 1

at 13-16.

 The NAAQS are "maximum concentration <ceilings’" for

particular pollutants, "measured in terms of the total

 4
  At the time ConAgra applied for a PSD permit in May 1997,

Posey County, the proposed location for this facility, was
designated attainment/unclassifiable for ozone under a one-hour
standard (set at 0.12 parts per million ("ppm") (or 120 parts per
billion ("ppb")), with a 1-hour averaging time). See 40 C.F.R.
§ 81.315 (1997). In July 1997, EPA issued a new ozone NAAQS ("8-
hour standard") of 0.08 ppm (or 80 ppb) with an 8-hour averaging
time. See 62 Fed. Reg. 38,856, 38,858 (July 18, 1997).

 Litigation involving EPA’s promulgation of the 8-hour

standard is ongoing. On May 14, 1999, a divided panel of the
United States Court of Appeals for the D.C. Circuit rendered a
decision in American Trucking Association v. United States
Environmental Protection Agency, 1999 WL 300618 (D.C. Cir.),
remanding the 8-hour standard for EPA’s review. However, the
Court did not vacate the 8-hour standard, although it found it to
be unenforceable "by virtue of Clean Air Act § 181(a), 42 U.S.C.
§ 7511(a)." American Trucking Assoc., 1999 WL 300618, *27 (D.C.
Cir.). On June 28, 1999, EPA sought en banc review by the D.C.
Circuit. The matter is pending before the D.C. Circuit.

 Irrespective of the status of the ozone NAAQS, Petitioners

have not met their burden of identifying clear error on the part
of IDEM in issuing the Permit in this case.

                           - 6 -

concentration of a pollutant in the atmosphere." U.S. EPA Office

of Air Quality Planning, New Source Review Workshop Manual

("Draft Manual")5 at C.3. NAAQS have been set for six criteria

pollutants: sulfur oxides,6 particulate matter,7 NO2, CO, ozone,

and lead. See 40 C.F.R. §§ 50.4-.12. An air quality analysis,

conducted pursuant to the regulatory requirements of 40 C.F.R.

§ 52.21(k), (l) and (m), is the principal means for determining

at the preconstruction stage whether the NAAQS or a PSD increment8

will be exceeded by a new major stationary source.9 The

requirements of preventing violations of the NAAQS and the

applicable PSD increments, and the required use of best available

 5
  The Draft Manual was issued as a guidance document for use

in conjunction with new source review workshops and training, and
to guide permitting officials with respect to PSD requirements
and policy. Although it is not accorded the same weight as a
binding Agency regulation, the Draft Manual has been considered
by this Board as a statement of the Agency's thinking on certain
PSD issues. See, e.g., Hawaii Elec. Light Co., slip op. at
9 n.7, 8 E.A.D. ; EcoElectrica, slip op. at 5 n.3, 7 E.A.D. ;
In re Masonite Corp., 5 E.A.D. 551, 558 n.8 (EAB 1994).
6
Sulfur oxides are to be measured in the air as SO2. See
40 C.F.R. § 50.4(c).
7
For purposes of determining attainment of the NAAQS,
particulate matter is to be measured in the ambient air as
particulate matter with an aerodynamic diameter less than or
equal to a nominal 10 micrometers. See 40 C.F.R. § 50.6(c).
8
A PSD increment is the maximum allowable increase in
pollutant concentration over a baseline concentration. 40 C.F.R.
§ 52.21(c).
9
See Draft Manual at C.1-C.2 ("the analysis will involve (1)
an assessment of existing air quality, * * * and (2) predictions,
using dispersion modeling, of ambient concentrations that will
result from the applicant’s proposed project and future growth
associated with the project.")

                           - 7 -

control technology ("BACT"), to minimize emissions of air

pollutants, see 40 C.F.R. § 52.21(j)(2), are the core of the PSD

regulations.10 See Draft Manual at 5; accord AES Puerto Rico,

slip op. at 4, 8 E.A.D. __.

 The Draft Manual provides that a source can demonstrate that

it does not "cause or contribute" to a violation of a NAAQS in

one of three ways:

       1. The proposed new source or modification
       will not cause a significant ambient impact
       anywhere.

       2. The proposed new source or modification,
       in conjunction with existing sources, will
       not cause or contribute to a violation of
       any NAAQS * * *.

       3. The proposed new sources or
       modification, in conjunction with existing
       sources, will cause or contribute to a
       violation, but will secure sufficient
       emissions reductions to offset its adverse
       quality impact.

Draft Manual at C.51-C.52.

 IDEM and ConAgra argue that the air quality analysis that

ConAgra conducted shows the proposed facility meets the first of

these compliance demonstration mechanisms because the maximum

modeled impact for ozone is 1 ppb -- substantially less than the

3 ppb level chosen by IDEM as "significant." See IDEM Resp. 98-

27 at 5; ConAgra Resp. at 98-27 at 9; AQA at 7 ("The impact * * *

from ConAgra was insignificant with the maximum impact modeled at

1.0 ppb."). CGB argues that IDEM’s use of significant impact

 10
  We note that Petitioners do not challenge on appeal IDEM’s

BACT determinations.

                            - 8 -

levels for ozone is inappropriate because EPA has not identified

one for ozone. See PSD App. 98-27 at 8-9; CGB Reply at 3. We

are unpersuaded by CGB’s argument.11 The mere fact that EPA has

not set a significant impact level for ozone does not, without

more, demonstrate clear error or an abuse of discretion on the

part of IDEM in using significant impact levels for ozone in the

context of this case. See In re Old Dominion Elec. Cooperative,

3 E.A.D. 779, 782 n.6 (Adm’r 1992) (no clear error shown in light

of state findings and fact that EPA has not issued any final

guidance that would contravene state policy); In re Hadson Power

14 - Buena Vista, 4 E.A.D. 258, 269-70 (EAB 1992) (clear error is

not established where no EPA guidance contravenes state policy

and no showing was made that state’s policy was inconsistent with

federal law); see also AES Puerto Rico, slip op. at 33-34,

8 E.A.D. __ (absence of guidance in setting PM10 BACT limit does

not indicate clear error; Region’s approach was reasonable under

the circumstances). Furthermore, Petitioners have not presented

any other reasons for questioning IDEM’s explanation and

selection of a 3 ppb significant impact level. Nor have

Petitioners demonstrated any reason to believe that the use of a

3 ppb significant impact level in this case, as devised by IDEM,

would cause or contribute to an exceedance of the ozone NAAQS.

 11
  We note that VWI, unlike CGB, does not directly take issue

with IDEM’s use of a 3 ppb significance level. Rather, VWI
merely concludes that "the voluminous VOC/Hexane emissions

• • • will cause or contribute to violations of the NAAQS in
      Vanderburgh County’s Air Quality Control Region." PSD App. 98-28
      at 5.

                       - 9 -
      

      Petitioners merely make conclusory statements that IDEM and

ConAgra "clearly failed" to demonstrate that the facility will

not cause or contribute to a NAAQS violation. See e.g., PSD App.

98-27 at 9.12 This is simply insufficient to obtain review by the

Board, accordingly, review is denied as to this issue. See In re

Maui Elec. Co., PSD App. 98-2, slip op. at 19 (EAB, Sept. 10,

1998), 8 E.A.D. __ (denying review for Petitioner’s failure to

show why response to comments were inadequate).13

 VWI also asserts that IDEM failed to adequately address the

impacts of the Permit on the ozone maintenance plan14 approved for

Vanderburgh County, Indiana, and that the Permit will allow

emissions of VOC/hexane that will cause or contribute to a

violation of the NAAQS for ozone in Posey County and in the

downwind counties of Vanderburgh and Warrick, Indiana. PSD App.

98-28 at 4-5. VWI’s issues on appeal simply mirror comments it

made on the draft Permit. VWI states on appeal that "Vanderburgh

 12
   We note that IDEM provided a summary of the significant

ozone NAAQS comments received, including comments related to the
effect of the Permit on regional ozone levels, and responses
thereto, upon issuing the Permit on August 14, 1998. See ATSD at
16-19.
13
On the record before us, we have concluded that IDEM’s
finding that ConAgra "will not violate any established emission
standards for * * * ozone," see ATSD at 21, was not shown to be
clearly erroneous under these circumstances. Should
circumstances change, or EPA develop guidance in responding to
these or similar situations in the future, our deference here is
in no way intended to preclude EPA from diverging from the policy
choices made by IDEM in this case.
14
The ozone maintenance plan for Vanderburgh County was
approved as a State Implementation Plan revision on December 2,
1997. 62 Fed. Reg. 64725, 64736 (Dec. 9, 1997).

                           - 10 -

County’s total industrial VOC emissions are less than 3,000 tons

per year. If this plant were built just a mile and one half to

the east, it would add nearly 33% to that figure." PSD App. 98-

28 at 5. VWI’s comments on the draft Permit stated, "Total

stationary source emissions of VOC in Vanderburgh County are at a

level of approximately 2,800 tons per year. This plant, just

over the county line, will add a full one-third (33%) to that

figure even if ConAgra’s data is correct. See PSD App. 98-28,

Exh. 2 at ¶ 4 (June 12, 1998). Although VWI has asserted

additional VOC emissions "will devastate efforts of Vanderburgh

County * * * to comply with the ozone NAAQS," they do not

specifically allege that the ConAgra VOC emissions would actually

violate the ozone maintenance plan. See PSD App. 98-28 at 5.

VWI concludes that while they have "asked IDEM to address this

problem, * * * all we have gotten is lip service." PSD App. 98-

28 at 5. VWI has merely restated comments raised during the

public comment period without explaining how IDEM’s response15 to

those comments is either clearly erroneous or otherwise warrants

review. See Kawaihae Cogeneration Project, slip op. at 10, 7

E.A.D. __. Accordingly, Petitioners have failed to carry their

burden and we cannot find that IDEM clearly erred in concluding

that ConAgra’s facility would not cause or contribute to an

exceedance of the NAAQS for ozone. Thus, review is denied as to

Petitioner’s challenge of IDEM’s ozone NAAQS determination.

 15
  See supra, note 12.

                            - 11 -

Petitioners also challenge operating Condition No. 38 of the

Permit. Condition No. 38 provides in pertinent part:

       Pursuant to 326 IAC 2-2-5, 40 C.F.R.
       52.21(k) and 326 IAC 2-1-3(i)(8), the
       Permittee shall obtain creditable reductions
       in the emissions of ozone precursors
       equivalent to their VOC emissions during the
       months of May through September. * * * A
       plan to obtain these creditable reductions
       on an ongoing, annual basis shall be
       submitted to the department at least 60 days
       prior to the operation of the plant and
       updated annually as needed.

Permit at 41.

 VWI primarily claims that the basis for emissions offsets in

Condition No. 38 is "outside the realm of any EPA rule or the

Clean Air Act." PSD App. 98-28 at 10-13. VWI also asserts that

Condition No. 38 "will cause a legal, ethical, enforcement and

regulatory morass * * * turn[] the PSD program * * * upside down

and * * * confusion would reign * * *." Id. at 11. Condition

No. 38 of the Permit clearly states the authority it rests upon

as both state (326 IAC 2-2-5 (Air Quality Impact Requirements);

326 IAC 2-1-3(i)(8) (Construction Permit Review Requirements))

and federal (40 C.F.R. 52.21(k) (Source Impact Analysis)) PSD

regulations. IDEM’s ATSD summarizes the comments regarding its

authority for the condition, see ATSD at 17, and provides in

response that:

       the condition is not established pursuant to
       the nonattainment permit rules and isn’t
       intended to implement those provisions,
        * * *. The condition is intended to be
       consistent with whatever future air quality
       planning efforts are necessary to ensure the




                           - 12 -

State Implementation Plan is adequate to
attain and maintain air quality in
compliance with the revised NAAQS for ozone.

Id. at 19. IDEM’s response to VWI’s appeal counters that this

provision results in a "PSD permit that is more stringent than

what is required by federal law and is supported by Indiana law."

IDEM Resp. 98-28 at 10. As such, IDEM argues, the Board should

not exercise jurisdiction over Condition No. 38. Id.

 In this case, we do not find clear error with IDEM’s

conclusion that the ozone NAAQS will not be violated, as

discussed supra. Upon our examination of the record, we conclude

that the offsets contemplated by Condition No. 38 were not

considered in demonstrating that the significant impact level was

not exceeded. See IDEM Resp. 98-27 at 6 (stating "IDEM did not

consider the reductions necessary for ConAgra to meet the

demonstration under 40 CFR 52.21(k)."); see also AQA at 7; ATSD

at 19. Furthermore, we find that IDEM has now abandoned federal

law as a basis for imposing the condition, and articulated that

Condition No. 38 is not intended to demonstrate compliance with

40 C.F.R. § 52.21(k) with respect to the NAAQS for ozone. See

IDEM Resp. 98-27 at 7; IDEM Resp. 98-28 at 10 (stating that the

Board "should not exercise jurisdiction over Condition 38 of

ConAgra’s permit as it should properly be reviewed under Indiana

law, if at all."). However, as noted above, Condition No. 38 of

the Permit contains a reference to the federal PSD program as

authority for the condition. Since IDEM has abandoned federal

                            - 13 -

law as a basis for imposing Condition No. 38, IDEM is ordered to

strike any reference in the condition to federal law, in

particular 40 C.F.R. § 52.21(k). Accordingly, review is denied

regarding Condition No. 38.16

 CGB also argues that Condition No. 38 is intended to "cure"

IDEM and ConAgra’s failure to demonstrate that the plant’s VOC

emissions will not cause or contribute to a violation of the

ozone standard. PSD App. 98-27 at 11-18. IDEM and ConAgra

respond that the emissions offset provision is not required to

make the air quality compliance demonstration under the PSD

program. See ConAgra Resp. 98-27 at 25; IDEM Resp. 98-27 at 7.

Because we have found that Petitioners have failed to demonstrate

that IDEM’s conclusion that the Permit would not cause or

contribute to an exceedance of the NAAQS for ozone was clear

error, and CGB has provided no additional argument in this

section of its Petition for Review as to why the ozone NAAQS is

violated, we need not address CGB’s contention. Accordingly

review is denied as to CGB’s claims on this issue.

 16
  The record reflects that the Permit is also being

challenged in state court. See ConAgra Resp. 98-27 at 3. This
would appear to be the appropriate forum for challenging
Condition No. 38 and its basis under state law. See Kawaihae
Cogeneration Project, slip op. at 5 n.5, 7 E.A.D. __ (Board’s
jurisdiction extends to review of PSD component of the permit,
not other components issued pursuant to state law); see also
Knauf Fiber Glass, slip op. at 54, 8 E.A.D. __. In denying
review here, the Board makes no conclusion as to the merits of
Petitioners’ claims under state law.

                            - 14 -

2. Pre-Construction Monitoring

    Second, CGB and VWI challenge the Permit on the ground that

it fails to satisfy the requirements for pre-construction

monitoring for PM10. See PSD App. 98-27 at 18-22; PSD App. 98-28

at 6-9. Petitioners argue that the monitoring data relied upon

by ConAgra and IDEM do not meet requirements established by EPA’s

Ambient Monitoring Guidelines for Prevention of Serious

Deterioration, EPA-450/4-87-007) (May 1987) ("Monitoring

Guidelines"). Specifically, Petitioners claim that the data are

not representative of existing air quality because: 1) the data

relied upon are from monitors located too far away from the site

(15 kilometers), and 2) the data are too old. IDEM responds that

the PSD regulations allow for the use of "existing,

representative monitoring data" to satisfy the pre-construction

monitoring requirement. IDEM Resp. 98-27 at 8; IDEM Resp. 98-28

at 7.

    The PSD regulations provide in relevant part:

          Any application for a permit under this
          section shall contain an analysis of ambient
          air quality in the area that the major
          stationary source or major modification
          would affect for each of the following
          pollutants: (a) For the source, each
          pollutant that it would have the potential
          to [e]mit in a significant amount.

40 C.F.R. § 52.21(m)(1)(i). The Monitoring Guidelines provide

that monitoring data include "the use of existing representative

air quality data or monitoring the existing air quality."

Monitoring Guidelines at 3. With respect to existing

                             - 15 -

representative air quality data, the Monitoring Guidelines state

that monitor location, quality of data, and currentness of data

need to be considered. Id. at 6. For the location criteria, the

Monitoring Guidelines also provide "[i]n situations where there

is no existing monitor in the modeled areas, monitors located

outside these three types of areas may or may not be used. Each

determination must be made on a case-by-case basis." Id. The

Monitoring Guidelines contemplate that the permitting authority

has discretion to utilize existing data that do not meet the

location criterion described in the Monitoring Guidelines.

  Here, IDEM compared existing 1989-1991 monitoring data from

a PM10 monitor that was two miles west of the proposed facility

with similarly aged monitoring data from two monitors farther

away in Evansville. See ATSD at 33. IDEM also evaluated more

recent (1995-1997) data from the Evansville monitors with the

1989-1991 Evansville data and found the newer data indicated that

air quality was "improving." Id. at 34. Accordingly, IDEM

concluded that the 1989-1991 Evansville data was conservative and

found it was "representative of the area for PM10." See AQA at

3. The Evansville data indicated a higher background

concentration of PM10 than the data from two miles west of the

proposed plant, although the monitor within 2 miles of the plant

captured emissions from the A.B. Brown Power Plant, the area’s

largest emitter of PM10. See IDEM Resp. 98-27 at 8. IDEM

reasoned that the use of the conservative Evansville ambient

                            - 16 -

background concentration data would serve to limit ConAgra’s

emissions, thereby decreasing the likelihood of a NAAQS

violation. See IDEM Resp. 98-27 at 8; IDEM Resp. 98-28 at 7.

Accordingly, IDEM did not require pre-construction monitoring.

   Our examination of the record indicates that IDEM adequately

considered the factors of the Monitoring Guidelines, and made a

reasoned judgment that PM10 pre-construction monitoring is not

necessary in this case. Petitioners make no persuasive argument

and point out no data to refute IDEM’s judgment. See Knauf Fiber

Glass, slip op. at 35, 8 E.A.D. __. (stating the Board’s

inclination to support the permitting authorities technical

judgment on the pre-construction monitoring determinations). In

these circumstances, IDEM’s decision is not clearly erroneous.

Thus, we deny review of this issue.

   3.    PSD Increment Consumption Analysis



   Third, Petitioners allege that the Permit was improperly

issued because the increment consumption analysis for PM10 does

not comply with the requirements of 40 C.F.R. § 52.21(c), (k) and

(m). PSD App. 98-27 at 25; PSD App. 98-27 at 9. VWI provides no

discussion upon which a determination of error in IDEM’s

increment consumption analysis can be made; thus we deny review

because VWI has not met its burden of proving that the Permit was

based on clear error or otherwise warrants review. See Hawaii

Elec. Light Co., slip op. at 8, 8 E.A.D. __ (denying review where

                            - 17 -

petition is so lacking in specificity as to why decision was

erroneous that no basis for review has been presented).17

  We now turn to CGB’s contentions regarding IDEM’s PSD

increment consumption analysis. CGB claims there is error

because secondary emissions were not included and IDEM failed to

support "its assertion that all sources constructed after the

minor source baseline date and their actual emissions were

properly included in the source inventory." PSD App. 98-27 at

25. CGB raised these issues during the public comment period and

IDEM responded to them in the ATSD. See ATSD at 34. IDEM

pointed out that the source baseline date was established on

January 9, 1978, not in 1988 as CGB stated in its comments. Id.

IDEM also outlined the methodology for maintaining the source

inventory and informed CGB that secondary emissions do not

significantly contribute to ambient air quality in this case.

Id. CGB’s petition merely restates comments raised and responded

to during the permitting process and does not explain why IDEM’s

response was error. See In re Encogen Cogeneration Facility, PSD

Appeal Nos. 98-22 through 98-24, slip op. at 11, (EAB, March 25,

1999), 8 E.A.D. __ (review denied where petitioner fails to

demonstrate why response to comments were inadequate); see also

Knauf Fiber Glass, slip op. at 61, 8 E.A.D. __ (review of

  17
  We note that VWI merely disagrees with the amount of

increment ConAgra’s facility is projected to consume, rather than
claiming error in IDEM and ConAgra’s increment consumption
analysis. VWI has not given the Board any basis to review IDEM’s
judgment in this respect, and we decline to review it sua sponte.

                          - 18 -

petitioner’s secondary emissions issues denied for failing to

satisfy burden of review). Therefore, we deny review of this

issue because the petition identifies neither clear error nor an

important policy consideration that justifies Board review.

 4.   Additional Impacts Analysis



 Finally, Petitioners allege that the additional impacts

analysis of the proposed project on economic growth, soils,

vegetation and visibility required by 40 C.F.R. § 52.21(o) was

inadequate. See PSD App. 98-27 at 25-29; PSD App. 98-28 at 9-10.

IDEM and ConAgra respond that the additional impact analysis was

conducted in accordance with the PSD regulations. See IDEM Resp.

98-27 at 10-11; ConAgra Resp. 98-27 at 32-34; IDEM Resp. 98-28 at

8; ConAgra Resp. 98-28 at 6.

 The PSD regulations require that "[t]he owner or operator

shall provide an analysis of the impairment to visibility, soils

and vegetation that would occur as a result of the source . . .

and general commercial, residential, industrial and other growth

associated with the source." See 40 C.F.R. § 52.21(o). EPA’s

Draft Manual provides that the additional impact analysis is

composed of four parts - 1) growth; 2) ambient air quality impact

analysis; 3) soils and vegetation impacts; and 4) visibility

impairment. See Draft Manual at D.3. The Draft Manual states

that the purpose of the "growth analysis is to quantify

associated growth; that is, to predict how much new growth is

                           - 19 -

likely to occur to support the source * * * under review, and

then to estimate the emissions which will result from that

associated growth." Id. According to IDEM, ConAgra’s additional

impact analysis "showed no expected impacts to adversely affect

major vegetative cover type and crop lands in the area from

existing conditions." ATSD at 37.18

 We cannot find clear error on IDEM’s part when the

Petitioners have stated only, in the most general of terms, that

the additional impact analysis was inadequate. It appears that

the concerns expressed in the Petitions were responded to in

IDEM’s ATSD. VWI’s claim that IDEM has "accepted ConAgra’s

analysis of impacts on soil, vegetation and visibility without

any attempt to verify or even justify it" was answered by IDEM.

PSD App. 98-28 at 10. IDEM explained to VWI in the ATSD that

"IDEM typically works very closely with applicants * * * to

ensure that the application will properly address all applicable

requirements. While ConAgra does provide its general design of

the plant, the regulatory requirements are provided by, or

independently verified by IDEM." ATSD at 39. Since VWI has

presented no information to refute IDEM’s response, we deny

review of VWI’s claim on this issue since they have failed to

demonstrate clear error.

 18
  ConAgra’s additional impact analysis also included a

visibility analysis, as required under the PSD regulations. The
petitions for review did not raise any specific objections to the
visibility analysis conducted in this case.

                             - 20 -

CGB challenges the additional impacts analysis on two bases.

First, CGB alleges that the vegetation impacts analysis,

including the impact on melon crops, was "shallow." PSD App. 98-

27 at 25. Our examination of the record indicates that IDEM

concluded, based on census data showing increased melon acreage

in the area and strong market values, as well as, ozone

sensitivity studies on foliage, that no adverse impact on

vegetation would result from the facility. See ATSD at 37-38.

CGB has presented no information that demonstrates to the Board

that IDEM has committed clear error in its vegetation impact

analysis. Thus review is denied on this issue.

 Next, CGB claims that the additional impact analysis was

inadequate as to future economic growth in the area. CGB

contends that because the facility will cause the area to violate

the 8-hour standard for ozone, future economic growth is

jeopardized. CGB’s contention rests on an assumption that the

Permit will cause or contribute to a violation of the NAAQS for

ozone. Because we have found, supra, that Petitioners have

failed to meet their burden with respect to the issue of whether

the Permit will cause or contribute to a violation of the ozone

NAAQS, we deny review of this issue. CGB has not demonstrated

any clear error or raised any policy issue warranting review by

the Board. Thus, we deny review of Petitioners’ additional

impact analysis issues.

                            - 21 -

For the foregoing reasons, review of Petitions 98-27 and 98-

28 is hereby denied. We order IDEM to revise Condition No. 38 of

the Permit to strike the reference to 40 C.F.R. § 52.21(k). On

all other issues raised and not addressed, review is denied.

 So ordered.

                             ENVIRONMENTAL APPEALS BOARD

Dated: 09/08/99 By: /s/

                                   Kathie A. Stein
                                   Environmental Appeals Judge




                          - 22 -

CERTIFICATE OF SERVICE

 I hereby certify that copies of the foregoing Order Denying

Review in the matter of ConAgra Soybean Processing Company,

Docket Nos. PSD 98-27 & 98-28, were sent to the following persons

in the manner indicated:

By Certified Mail,

Return Receipt Requested:

      Elizabeth A Zlatos, Esq.
      Indiana Department of Environmental Management
      Office of Legal Counsel
      100 N. Senate Ave., 13th Floor
      P.O. Box 6015
      Indianapolis, IN 46206-6015

      Michael H. Winek, Esq.
      Babst, Calland, Clements & Zomnir, P.C.
      Counsel for ConAgra Soybean Processing Company
      Two Gateway Center, Eighth Floor
      Pittsburgh, PA 15222

      John A. Andreason, Esq.
      McGrath, North, Mullin & Kratz, P.C.
      Suite 400
      One Central Park Plaza
      222 South Fifteenth Street
      Omaha, NE 68102

      Paul R. Cort, Esq.
      U.S. Environmental Protection Agency
      Office General Counsel
      401 M Street, S.W. (2344)
      Washington, DC 20460

      Ann L. Coyle, Esq.
      U.S. Environmental Protection Agency Region V
      Office of Regional Counsel
      77 West Jackson Blvd.
      Chicago, IL 60604-3507

      John Blair, President
      Valley Watch, Inc.
      800 Adams Ave.
      Evansville, IN 47714

Larry J. Kane, Esq.
Bigham Summers Welsh & Spilman
Counsel for Consolidated Grain and Barge Company
2700 Market Tower Building
10 West Market Street
Indianapolis, IN 47204

Date: 09/09/99 /s/
Mildred Johnson
Staff Assistant

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