Sutter Power Plant

Plain-English summary

Calpine Corporation sought a prevention of significant deterioration permit to build a 500-megawatt natural-gas power plant in rural Sutter County, California. One petitioner challenged the Region's treatment of plant siting, alleged respiratory-health effects and impacts on farming communities, and objected to emissions credits. A second petition was filed more than two months after the permit was issued. The Environmental Appeals Board denied the first petition because some issues were not preserved, the emissions-credit issue fell outside PSD jurisdiction, and the Region had not clearly erred in deferring siting questions to other agencies. It denied the second petition as untimely because it was not filed within 30 days. This permit decision imposed no monetary penalty.

Decision snapshot

• Cited authorities: 40 C.F.R. § 52.21 and 42 U.S.C. §§ 7470, 7471, and 7475.
• Outcome: Both petitions for review of the PSD permit were denied.
• Key point: PSD review is limited to properly preserved PSD issues, and a petition filed more than 30 days after the final permit is untimely.

Full text (EPA EAB public release)

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  680                ENVIRONMENTAL ADMINISTRATIVE DECISIONS



                     IN RE SUTTER POWER PLANT
                           PSD Appeal Nos. 99–6 & 99–73

                          ORDER DENYING REVIEW



                              Decided December 2, 1999




                                           Syllabus
        Two petitioners seek review of a prevention of significant deterioration (“PSD”) per-
  mit issued by Region IX of the U.S. Environmental Protection Agency to Calpine
  Corporation for the construction of a new electrical power plant. The plant, which will be
  situated in rural Sutter County, California, outside Yuba City, is designed to produce 500
  megawatts of electricity by burning natural gas and generating steam energy. The PSD per-
  mit authorizes the plant’s emissions of carbon monoxide, nitrogen oxides, and particulate
  matter in accordance with section 165 of the Clean Air Act (“CAA”), 42 U.S.C. § 7475.

         Ms. Joan Joaquin-Wood filed the first petition for review of the PSD permit on August
  17, 1999, alleging that: (1) Region IX failed to conduct an adequate review of alternative
  sites for the power plant; (2) the plant’s emissions will cause the incidence of respiratory
  illness in Sutter County to increase; (3) Calpine’s purchase of emissions credits will pre-
  clude an overall reduction in Sutter County air pollution; and (4) Sutter County’s econom-
  ically disadvantaged farming communities should not be subjected to “tiny particulate mat-
  ter” and other pollutant emissions from the power plant. Mr. and Mrs. Bob Amarel, Jr. filed
  the second petition for review on September 29, 1999.

         Held: The petitions for review of the Sutter Power Plant PSD permit are denied.
  Taking Ms. Joaquin-Wood’s allegations in the order listed above, review is denied on the
  first issue because petitioner failed to identify any error in Region IX’s decision not to
  reconsider, in the context of issuing a PSD permit, the plant siting decision. The
  Environmental Appeals Board (“Board”) finds no clear error, in the circumstances of this
  case, in the Region’s decision to defer questions regarding the siting of the facility to the
  other federal and state agencies that evaluated the project in this regard. Review is denied
  on the second and fourth issues (regarding alleged causation of an increase in respiratory
  illnesses and impacts on economically disadvantaged farming communities) because these
  issues were not properly preserved for appellate review. With respect to Ms. Joaquin-
  Wood’s third issue regarding emissions credits, the Board lacks jurisdiction to decide it
  because the emissions credit requirement relevant here springs from the CAA nonattain-
  ment area program, not the PSD program. Thus, Ms. Joaquin-Wood’s petition for review is
  denied. As for the Amarels, their petition is denied because it is untimely. The petition was
  filed more than two months after Region IX issued the final PSD permit, rather than with-
  in the requisite thirty days.




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            Before Environmental Appeals Judges Scott C. Fulton,
         Edward E. Reich, and Kathie A. Stein.
              Opinion of the Board by Judge Fulton:

              The Environmental Appeals Board (“Board”) is presented in this case
         with two petitions seeking review of a prevention of significant deterio-
         ration (“PSD”) permit issued by Region IX of the U.S. Environmental
         Protection Agency (“EPA”) to Calpine Corporation for the construction of
         a new electrical power plant. The plant, which will be situated in rural
         Sutter County, California outside Yuba City, is designed to produce 500
         megawatts of electricity by burning natural gas and generating steam
         energy. The PSD permit authorizes the plant’s emissions of carbon
         monoxide, nitrogen oxides, and particulate matter in accordance with
         section 165 of the Clean Air Act (“CAA”), 42 U.S.C. § 7475. For the rea-
         sons expressed below, we deny the petitions for review.

                                          I. BACKGROUND

         A. Statutory and Regulatory Background

              Congress enacted the PSD provisions of the CAA in 1977 for the pur-
         pose of, among other things, “insur[ing] that economic growth will occur
         in a manner consistent with the preservation of existing clean air
         resources.” CAA § 160(3), 42 U.S.C. § 7470(3). To that end, parties must
         obtain preconstruction approval (i.e., PSD permits) to build new major
         stationary sources, or to make major modifications to existing sources, in
         areas of the country deemed to be in “attainment” or “unclassifiable” with
         respect to federal air quality standards called “national ambient air qual-
         ity standards” (“NAAQS”). See CAA §§ 107, 160–169B, 42 U.S.C. §§ 7407,
         7470–7492.

              NAAQS are established on a pollutant-by-pollutant basis and are cur-
         rently in effect for six air contaminants: sulfur oxides (measured as sulfur
         dioxide (“SO2”)), particulate matter (“PM10”),1 carbon monoxide (“CO”),
         ozone, nitrogen dioxide (“NO2”), and lead. 40 C.F.R. § 50.4–.12. In areas
         deemed to be in “attainment” for any of these pollutants, air quality meets
         or is cleaner than the NAAQS for that pollutant. CAA § 107(d)(1)(A)(i), 42
         U.S.C. § 7407(d)(1)(A)(i); In re Maui Elec. Co., 8 E.A.D. 1, 4 (EAB 1998).


              1
                PM10 is comprised of particulate matter with an aerodynamic diameter of 10 microns
         or less. 40 C.F.R. § 50.6(c); U.S. EPA, Office of Air Quality Planning & Standards, New
         Source Review Workshop Manual A.18 (draft Oct. 1990) (“Draft NSR Manual”).




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  In “unclassifiable” areas, air quality cannot be classified on the basis
  of available information as meeting or not meeting the NAAQS.
  CAA § 107(d)(1)(A)(iii), 42 U.S.C. § 7407(d)(1)(A)(iii). Areas may also be
  designated as “nonattainment,” meaning that the concentration of a pol-
  lutant in the ambient air exceeds the NAAQS for that pollutant.
  CAA § 107(d)(1)(A)(ii), 42 U.S.C. § 7407(d)(1)(A)(ii). The PSD program is
  not applicable, however, in nonattainment areas.2 See CAA § 161, 42
  U.S.C. § 7471.

       Applicants for PSD permits must demonstrate, through analyses of
  the anticipated air quality impacts associated with the construction and
  operation of their proposed facilities, that their facilities’ emissions will
  not cause or contribute to a violation of any applicable NAAQS or PSD
  “increment.” 3 CAA § 165(a)(3), 42 U.S.C. § 7475(a)(3); 40 C.F.R.
  § 52.21(k)–(m). In addition, applicants for PSD permits must employ the
  “best available control technology,” or “BACT,” to minimize emissions of
  pollutants that may be emitted by the new source in amounts greater than
  applicable “significant” levels established by the PSD regulations.4 CAA
  § 165(a)(4), 42 U.S.C. § 7475(a)(4); 40 C.F.R. § 52.21(j)(2). As the Board
  has noted on prior occasions, “[t]he requirements of preventing violations
  of the NAAQS and the applicable PSD increments, and the required use
  of BACT to minimize emissions of air pollutants, are the core of the PSD
  regulations.” In re Encogen Cogeneration Facility, 8 E.A.D. 244, 247 (EAB
  1999); accord In re Hawaii Elec. Light Co., 8 E.A.D. 66, 73 (EAB 1998).


       2
         In nonattainment areas, the New Source Review requirements of CAA §§ 171–193, 42
  U.S.C. §§ 7501–7515; 40 C.F.R. §§ 51.160–.165, apply in lieu of the PSD requirements.
  Notably, a single geographic area may be designated as attainment or unclassifiable for one
  or more of the six pollutants and as nonattainment for one or more of the others. See Draft
  NSR Manual at 4. In such cases, the PSD program will apply in that geographic area, but
  only to the attainment/unclassifiable pollutants.
       3
         PSD increments represent the maximum allowable increase in concentration that
  may occur above a baseline ambient air concentration for a pollutant. See 40 C.F.R.
  § 52.21(c) (increments for six regulated air pollutants).
        4
            The significance levels are as follows:

                           POLLUTANT                  SIGNIFICANCE LEVEL
                            CO                           100 tons per year (“tpy”)
                            NOX                          40 tpy
                            SO2                          40 tpy
                            PM10                         15 tpy
                            Ozone (as VOCs)              40 tpy
                            Lead                         0.6 tpy

  40 C.F.R. § 52.21(b)(23).




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         B. Factual and Procedural Background

               In 1998, Calpine filed an application with Region IX for permission to
         construct a new power plant consisting of two combustion turbine gener-
         ators (“CTGs”), two heat recovery steam generators (“HRSGs”) with duct
         burners, a steam turbine generator (“STG”), and associated equipment.
         Each CTG is expected to produce approximately 170 megawatts of elec-
         tricity. The exhaust gases from the CTGs will be piped to the HRSGs, which
         will generate steam that will in turn be piped to the STG for the produc-
         tion of an additional 160 megawatts of electricity. Calpine proposed to site
         the facility in a portion of Sutter County designated as attainment or unclas-
         sifiable for CO, NO2, PM10, and SO2 and nonattainment for ozone. 40 C.F.R.
         § 81.305. The plant’s CTGs and HRSGs have the potential to emit NOX, CO,
         and PM10 in quantities sufficient to trigger the protections of the PSD pro-
         gram,5 and hence necessitated Calpine’s application.

              Calpine also had to apply for permits and approvals to construct its
         proposed plant under several other federal laws, as well as under appli-
         cable state and local laws. For example, given the magnitude of the pro-
         posed project and its potential impacts on the environment, the National
         Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4370d, and the
         Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531–1534, both applied to
         the project. The U.S. Department of Energy’s Western Area Power
         Authority (“WAPA”) acted as the lead agency under NEPA and, in con-
         junction with the California Energy Commission (“CEC”) and others, pre-
         pared an environmental impact statement for the project. As for the ESA,
         WAPA conducted a biological assessment and engaged in formal consul-
         tation with the U.S. Fish & Wildlife Service regarding impacts of the pro-
         posed plant on endangered and threatened species and critical habitat.
         Under state law, the CEC has primary authority for power plant siting
         issues, Cal. Pub. Res. Code §§ 22519(c), 25500, and it conducted its own
         environmental review and plant siting analysis for the project. In addi-
         tion, given the status of Sutter County as a nonattainment area for ozone,
         Calpine was required under the CAA to obtain a nonattainment area per-
         mit from the Feather River Air Quality Management District (“AQMD”) for
         its prospective emissions of the ozone precursors NOX and volatile organ-
         ic compounds (“VOCs”).




             5
               The proposed Sutter Power Plant has the potential to emit 483 tpy of CO, 205 tpy of
         NOX, 31.5 tpy of SO2, 92.5 tpy of PM10, 23.7 tpy of VOCs, and 0.0 tpy of lead. Region IX’s
         Response to Petition for Review attachment 2 tbl.2 (Ambient Air Quality Impact Report).




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       In response to Calpine’s PSD application, Region IX initiated a
  course of action designed to encourage public participation in the permit
  decisionmaking process. See In re Knauf Fiber Glass, GmbH, 8 E.A.D.
  121, 124 (EAB 1999) (CAA “emphasizes the importance of public partici-
  pation and input into the decisionmaking process”). On June 14, 1999,
  the Region solicited public comments on its proposal to issue a PSD per-
  mit for the construction of the Sutter Power Plant. The Region received
  only one set of comments, in a letter from Ms. Joan Joaquin-Wood. See
  Letter from Joan Joaquin-Wood to Barbara Witter, EPA Region IX (July 14,
  1999) (“Wood Comments”). The Region responded to each of Ms.
  Joaquin-Wood’s comments and concluded that “the comment letter does
  not provide any basis for withdrawing its proposed decision to issue the
  [Sutter Power Plant] PSD Permit to Calpine and does not contain any
  basis for making changes in specific conditions.” EPA Region IX,
  Response to Comments from Joan Joaquin-Wood on Draft PSD Permit for
  Calpine Corporation (NSR 4–4–4, SAC 98–01) at 1 (“Response to
  Comments”). Accordingly, on July 21, 1999, Region IX issued the final
  PSD permit to Calpine without making any changes to the proposed per-
  mit. Two appeals, and ensuing filings, followed, as described in the fol-
  lowing paragraphs.

        1. Joaquin-Wood Petition

       On August 17, 1999, Joan Joaquin-Wood filed a petition for review
  of the final PSD permit. Ms. Joaquin-Wood’s petition raises four allega-
  tions: (1) Region IX failed to conduct an adequate review of alternative
  sites for the power plant; (2) the plant’s emissions will cause the inci-
  dence of respiratory illness in Sutter County to increase; (3) Calpine’s
  purchase of emissions credits will preclude an overall reduction in Sutter
  County air pollution; and (4) Sutter County’s economically disadvantaged
  farmers should not be subjected to “tiny particulate matter” and other pol-
  lutant emissions from the power plant. Letter from Joan Joaquin-Wood to
  Environmental Appeals Board 1 (Aug. 16, 1999) (“Wood Pet.”).

       In response to Ms. Joaquin-Wood’s petition, Region IX filed a motion
  for an expedited briefing schedule, arguing that the issues raised in the
  petition were issues of law and would not require extensive argument.
  Region IX’s Motion for Expedited Briefing Schedule at 1. The Board denied
  the motion, and Region IX subsequently filed a response to the petition on
  September 9, 1999. Region IX’s Response to Petition for Review (“RIX
  Resp.”). Calpine also filed a response to the petition on September 3, 1999.
  Calpine’s Response to Petition for Review (“Calpine Resp.”).




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               On September 15, 1999, Ms. Joaquin-Wood filed a motion for leave
         to file a reply to the responses submitted by Region IX and Calpine. The
         Board granted the motion and ordered petitioner to file a reply by close
         of business on October 3, 1999. Order Granting Motion for Leave to File
         Reply Brief at 2. Ms. Joaquin-Wood filed a timely reply. See Petitioner’s
         Reply Brief (“Reply Br.”). On October 21, 1999, the Board granted Region
         IX’s request for leave to file a “supplemental response” to petitioner’s
         reply memorandum and ordered that the response be filed by October
         27, 1999. Order Granting Motion for Leave to File Supplemental Response
         at 1–2. The Region filed its supplemental response on October 28, 1999,
         one day late. See Region IX’s Supplemental Response to Petition for
         Review (“RIX Supp. Resp.”). Finally, on November 3, 1999, Ms. Joaquin-
         Wood filed a motion for leave to file a supplemental reply to the Region’s
         supplemental response, which the Board hereby denies.6

               2. Amarel Petition

              Meanwhile, on September 29, 1999, Mr. and Mrs. Bob Amarel, Jr.
         filed a petition for review of the Sutter Power Plant PSD permit. Letter
         from Mr. & Mrs. Bob Amarel, Jr. to Environmental Appeals Board (Sept.
         26, 1999). Region IX filed a response to this petition on November 2,
         1999, and Calpine filed a motion for leave to file a response (which we
         hereby grant in light of Calpine’s status as permittee), as well as the asso-
         ciated response, on October 25, 1999.

                                              II. DISCUSSION

         A. Scope of Board Review

              When the Board receives a petition to review a PSD permit, it begins
         its analysis by assessing the petitioner’s compliance with a number of
         important threshold procedural requirements. The Board will also deter-
         mine whether the issues raised in the petition fall within the purview of
         the PSD program and are thus subject to the Board’s jurisdiction. The pro-
         cedural and jurisdictional requirements are briefly explained in the fol-
         lowing sections.




               6
                 At this time, the Board has sufficient information before it to decide this case. Further
         briefing is unnecessary.




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        1. Threshold Procedural Requirements

       The Board’s authority to review PSD permits is set forth in EPA’s reg-
  ulations establishing procedures for the issuance, modification, and ter-
  mination of such permits. See 40 C.F.R. pt. 124. Interested parties may
  petition the Board for review of PSD permit conditions if:

            (1) They do so within thirty days after issuance of the
                final permit decision; and
            (2) They filed comments on the draft permit.

  40 C.F.R. § 124.19(a). In accordance with these rules, petitions filed more
  than thirty days after permit issuance will be dismissed as untimely. Id.;
  see In re AES Puerto Rico L.P., 8 E.A.D. 324, 328 (EAB 1999); In re
  Envotech, L.P., 6 E.A.D. 260, 265–66 (EAB 1996). Moreover, petitions
  received by parties that did not file comments on the draft permit will be
  dismissed because the parties lack “standing” to appeal the final permit.7
  See 40 C.F.R. § 124.19(a); In re Encogen Cogeneration Facility, 8 E.A.D.
  244, 249–51 (EAB 1999); Envotech, 6 E.A.D. at 266–67.

      Petitioners that meet the threshold requirements of timeliness and
  standing must also submit petitions that:

            (1) Demonstrate that any issues being raised were raised
                 during the public comment period;8 and
            (2) Show that the permit condition in question is
                 based on:
                (a) A finding of fact or conclusion of law that is clear-
                ly erroneous; or
                (b) An exercise of discretion or an important policy
                consideration that the Board should, in its discretion,
                review.




       7
         Parties who did not file comments on the draft permit may petition only for review
  of the changes made (if any) from the draft to the final permit decision. 40 C.F.R.
  § 124.19(a).
       8
         Alternatively, a petitioner may demonstrate that an issue for which it seeks review
  was not “reasonably ascertainable” during the public comment period. See 40 C.F.R.
  § 124.13; In re Encogen Cogeneration Facility, 8 E.A.D. 244, 250 n.8 (EAB 1999). Neither
  of the petitioners in this case have argued that review should be granted under this alter-
  native standard.




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         40 C.F.R. § 124.19(a). The intent of these rules is to ensure that the per-
         mitting authority—here, Region IX—has the first opportunity to address
         any objections to the permit, and that the permit process will have some
         finality. See Encogen, 8 E.A.D. at 249–50 (“The effective, efficient, and
         predictable administration of the permitting process demands that the
         permit issuer be given the opportunity to address potential problems with
         draft permits before they become final.”). “‘In this manner, the permit
         issuer can make timely and appropriate adjustments to the permit deter-
         mination, or, if no adjustments are made, the permit issuer can include
         an explanation of why none are necessary.’” In re Essex County (N.J.)
         Resource Recovery Facility, 5 E.A.D. 218, 224 (EAB 1994) (quoting In re
         Union County Resource Recovery Facility, 3 E.A.D. 455, 456 (Adm’r
         1990)). As EPA explained when it promulgated the part 124 rules, the
         Board’s power of review “should be only sparingly exercised,” and “most
         permit conditions should be finally determined at the Regional level.” 45
         Fed. Reg. 33,290, 33,412 (May 19, 1980); see In re Maui Elec. Co., 8 E.A.D.
         1, 7 (EAB 1998).

              In complying with these requirements, petitioners must include
         specific information supporting their allegations. It is not sufficient sim-
         ply to repeat objections made during the comment period; instead, a peti-
         tioner “must demonstrate why the Region’s response to those objections
         (the Region’s basis for its decision) is clearly erroneous or otherwise war-
         rants review.” In re LCP Chems., 4 E.A.D. 661, 664 (EAB 1993); accord
         Encogen, 8 E.A.D. at 251. The burden of demonstrating that review is
         warranted rests with the petitioner. See 40 C.F.R. § 124.19(a); AES Puerto
         Rico, 8 E.A.D. at 328; In re Hawaii Elec. Co., 8 E.A.D. 66, 71 (EAB 1998).

              Despite the apparent stringency of the foregoing procedural require-
         ments, the Board broadly construes petitions filed by persons who are
         unrepresented by legal counsel. See In re Knauf Fiber Glass, GmbH, 8
         E.A.D. 121, 127 (EAB 1999); In re Commonwealth Chesapeake Corp., 6
         E.A.D. 764, 772 (EAB 1997); Envotech, 6 E.A.D. at 268; In re Beckman
         Prod. Servs., 5 E.A.D. 10, 19 (EAB 1994). The Board is concerned that
         public participation be meaningful and not unduly hampered by process
         restrictions, and thus does not expect such petitions to contain sophisti-
         cated legal arguments or to employ precise technical or legal terms.9 That
         being said, however, the Board nonetheless does expect such petitions
         to provide sufficient specificity to apprise the Board of the issues being

            9
                As the First Circuit Court of Appeals has held:

            It would be inconsistent with the general purpose of public participation regula-
            tions to construe the regulations strictly. Such a strict construction would have
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  raised. In re Puerto Rico Elec. Power Auth., 6 E.A.D. 253, 255 (EAB 1995).
  The Board also expects the petitions to articulate some supportable rea-
  son or reasons as to why the permitting authority erred or why review is
  otherwise warranted. Beckman, 5 E.A.D. at 19.

         2. Board Jurisdiction to Review PSD Permits

        Apart from the procedural issues described above, the Board must
  also have jurisdiction to review issues raised in a petition. Under the
  existing regulatory structure, the Board has jurisdiction to review issues
  directly related to permit conditions that implement the federal PSD pro-
  gram. Knauf, 8 E.A.D. at 161. As we have explained, “The PSD review
  process is not an open forum for consideration of every environmental
  aspect of a proposed project, or even every issue that bears on air qual-
  ity. In fact, certain issues are expressly excluded from the PSD permitting
  process. The Board will deny review of issues that are not governed by
  the PSD regulations because it lacks jurisdiction over them.” 10 Id. at 127;
  see id. at 161–73 (denying review based on lack of jurisdiction to con-
  sider issues concerning hazardous or unregulated air pollutant impacts,
  use of landfill for waste disposal, emissions offsets, NEPA issues, opacity
  limits, and other issues); Encogen, 8 E.A.D. at 259–60 (no jurisdiction to
  consider acid rain, noise, and water-related issues).

  B. Joaquin-Wood Petition

       In her petition for review of Calpine’s PSD permit, Ms. Joaquin-Wood
  raises four objections. See Wood Pet. at 1. Each objection is addressed in
  turn below.




        the effect of cutting off a participant’s ability to challenge a final permit by virtue
        of imposing a scientific and legal burden on general members of the public who,
        initially, simply wish to raise their legitimate concerns * * * in the most accessi-
        ble and informal public stage of the administrative process, where there is pre-
        sumably some room for give and take between the public and the agency.

  Adams v. U.S. EPA, 38 F.3d 43, 52 (1st Cir. 1994).
       10
          As we noted in Knauf, “[i]n determining whether we have jurisdiction, the Board
  places considerable reliance on how the issue is framed in the petition for review, such as
  the basis upon which relief is being sought.” Knauf, 8 E.A.D. at 161–62.




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              1. Alternative Sites

              Ms. Joaquin-Wood contends that Region IX did not engage in an ade-
         quate review of alternative locations in which to site the proposed power
         plant. Wood Pet. at 1 (“alternative sites for the project were not ade-
         quately reviewed”); see also Reply Br. at 9–15. In response, the Region
         argues that this “generalized objection” simply reiterates the petitioner’s
         comments on the proposed permit without specifically identifying clear
         errors of law or fact on the Region’s part or important policy considera-
         tions warranting Board review, as required by the part 124 regulations
         and Board precedent. RIX Resp. at 5–7. The Region also asserts that mul-
         tiple federal, state, and local governmental agencies have been involved
         in approving this power plant. The Region points out that under
         California law, the CEC has “primary authority over issues concerning the
         siting of power plants and transmission routes.” Id. at 7 n.5; see Cal. Pub.
         Res. Code §§ 22519(c), 25500. According to the Region, “[l]and use issues
         in selecting an appropriate site for the project were subject to considera-
         tion and public hearings by the [CEC] and to review under [NEPA] by the
         federal Department of Energy. Issues concerning land use, including
         potential alternative sites, were resolved by those agencies prior to EPA’s
         PSD permitting decision.” RIX Resp. at 7–8.

              In its response to the petition, Calpine echoes many of the arguments
         raised by Region IX. See Calpine Resp. at 7–11. Calpine also alleges that
         Ms. Joaquin-Wood failed to demonstrate that her objection was raised
         during the public comment period. Id. at 4–6. In particular, Calpine con-
         tends that the generalized siting issue petitioner raises before us is not
         the same siting issue she raised in her comments, in which she singled
         out “at least three alternative” (yet unidentified) sites as having not
         received consideration. Id. at 5.

               As pointed out by the Region and Calpine, the land use planning
         process that yielded the site for the proposed plant had run its course
         prior to EPA’s permitting decision. As the Region explained, it duly ana-
         lyzed the impacts the proposed facility, as sited, would have on air qual-
         ity, in keeping with the PSD regulations. RIX Resp. at 8–9; see id. attach-
         ment 2 (Ambient Air Quality Impact Report). Petitioner has not identified
         any error in the Region’s decision not to reconsider the siting decision in
         the context of issuing a PSD permit. See Wood Pet. Thus, we find no clear
         error, in the circumstances of this case, in the Region’s decision to defer
         questions regarding the siting of the facility to the other agencies that
         evaluated the project in this regard. Cf. In re EcoEléctrica, L.P., 7 E.A.D.
         56, 74 (EAB 1997). Accordingly, review is denied on this ground.




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        2. Emissions Reduction Credits

       In her petition for review, Ms. Joaquin-Wood alleges that “the pur-
  chase of Emission Reduction Credits by Calpine do[es] not improve or
  even mitigate the additional pollution that will occur * * *; this means only
  that pollution that has been removed from other sites will be put back
  into [Sutter County’s] air.” Wood Pet. at 1. The Region responds to this
  allegation the same way it did to the allegation just addressed, arguing
  that it merely reiterates the petitioner’s very general comments without
  specifically identifying clear errors of law or fact on the Region’s part or
  important policy considerations warranting Board review. RIX Resp. at
  5–7, 11. In addition, the Region notes that Calpine’s purchase of offset
  credits is authorized under its nonattainment permit from the Feather
  River AQMD, not its PSD permit. Id. at 11. Accordingly, asserts the
  Region, Ms. Joaquin-Wood cannot seek review of the Feather River
  AQMD’s nonattainment decision through an appeal of an EPA-issued PSD
  permit. Id. For its part, Calpine again echoes the Region’s arguments and
  also repeats its theme that petitioner failed to demonstrate that the issue
  raised on appeal is the same as the issue raised during the comment peri-
  od. Calpine Resp. at 4–9, 12–13.

       Petitioner’s argument is jurisdictionally flawed. The Board may not
  review, in a PSD appeal, the decisions of a state agency made pursuant
  to non-PSD portions of the CAA or to state or local initiatives and not oth-
  erwise relating to permit conditions implementing the PSD program. See
  Knauf, 8 E.A.D. 167–68; see also In re Milford Power Plant, 8 E.A.D. 670,
  675–78 (EAB 1999). According to the Region, the emissions credits at
  issue here were imposed via Calpine’s nonattainment area permit, which
  the Feather River AQMD issued; petitioner has not shown otherwise.
  Moreover, the petitioner has not identified any conditions in Calpine’s
  PSD permit or pointed to any PSD provisions in the CAA or regulations
  calling for emissions reduction credit purchases. Thus, the Board denies
  review of the PSD permit on this issue due to lack of jurisdiction. See
  Knauf, 8 E.A.D. at 167–68.

        3. Farmers and Particulate Emissions

      Ms. Joaquin-Wood states in her petition for review that “92.4 tons of
  tiny particulate matter annually, in addition to the other pollutants,
  should not be loosed on [Sutter County’s] economically disadvantaged
  farming communities.” Wood Pet. at 1. In response, both Region IX and
  Calpine assert that Ms. Joaquin-Wood did not raise this objection during
  the public comment period. RIX Resp. at 11–12; Calpine Resp. at 6.
  Region IX also contends that this objection was not reasonably



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         ascertainable from petitioner’s other comments and that, even if it were
         reasonably ascertainable, the objection is not sufficiently specific to war-
         rant Board review. RIX Resp. at 12. Calpine joins in the Region’s argu-
         ment regarding lack of the requisite specificity. Calpine Resp. at 7.
         Finally, both parties claim that with respect to the Region’s PM10 BACT
         determination, petitioner provides no facts showing that the Region made
         a clear error of fact or law or abused its discretion, or that any other
         important issue warrants discretionary Board review of that determina-
         tion. RIX Resp. at 5–6, 12; Calpine Resp. at 10, 13–14.

              Petitioner asserts that this objection was preserved for Board review,
         claiming that she raised the point in paragraphs 2, 3, 7, and 8 of her com-
         ments on the proposed PSD permit. Reply Br. at 15. These paragraphs,
         however, contain very general, unsupported statements that do not allege
         any particular error or errors on Region IX’s part. For example, petition-
         er wrote:

                  I object to the placement of this project in the middle of
                  rice fields, prune orchards, and homes, and that the
                  power lines will be next to the Sutter Wildlife Refuge.

                  Construction will disrupt farming for many months.

         Wood Comments at 1 ¶¶ 2–3. Paragraph 7 of petitioner’s comments con-
         tains a claim that an additional hearing is necessary to explain why the
         proposed power plant may emit NO2, VOCs, and PM10 into the “already
         polluted air of Sutter County,” and paragraph 8 contains allegations
         regarding rice farmers selling “burn credits” to Calpine, which purport-
         edly will result in a failure to reduce the amount of SO2 and ozone in
         Sutter County’s air. Id. at 1 ¶¶ 7–8.

             None of the comments referred to by petitioner, or any other com-
         ments for that matter, fairly raise the issue advanced on appeal—that the
         economically disadvantaged farming communities of Sutter County
         should not be subjected to the proposed plant’s particulate and other
         emissions.11 Moreover, petitioner does not claim that this issue was not

              11
                 Ms. Joaquin-Wood did mention the 92.4 tpy PM10 limit in her comments, Wood
         Comments at 1 ¶ 7, but she neither linked the PM10 limit to economically disadvantaged
         farming communities of Sutter County nor identified any errors or abuses allegedly com-
         mitted by Region IX in establishing this emission limit. Instead, she requested that the
         Region hold a hearing to “explain why” the proposed plant’s NOX, VOCs, and PM10 limits
         were set where they were. See id. The Region responded in reasonable fashion to this
         comment, explaining that it did not hold such a hearing because it deemed the public
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  reasonably ascertainable at the time she filed her comments. See 40 C.F.R.
  § 124.13 (petitioners “must raise all reasonably ascertainable issues and
  submit all reasonably available arguments supporting their position by
  the close of the public comment period”). As we have repeatedly held,
  the Board will not consider arguments, such as this one, made for the first
  time on appeal. See, e.g., In re Rockgen Energy Center, 8 E.A.D. 536, 540
  (EAB 1999); In re Encogen Cogeneration Facility, 8 E.A.D. 244, 249–50
  (EAB 1999); In re Maui Elec. Co., 8 E.A.D. 1, 8–10 (EAB 1998). Thus,
  review of the PSD permit is denied on this ground.

        4. Increased Incidences of Respiratory Illness

       Finally, Ms. Joaquin-Wood alleges that the proposed power plant
  “will further pollute [Sutter County’s] already “moderately” polluted air,
  thereby increasing the already higher-than-average respiratory illness in
  the county.” Wood Pet. at 1. In response, Region IX notes that NAAQS
  “‘are set at levels that the Administrator of EPA has determined are nec-
  essary to protect the public health and welfare’” and that PSD increments
  provide an extra measure of safety in this regard. RIX Resp. at 9 (quot-
  ing Knauf, 8 E.A.D. at 148). According to the Region, the air quality
  analysis conducted for the proposed plant showed that, as long as the
  plant complies with its PSD permit, it will not cause or contribute to an
  exceedence of any NAAQS or PSD increment. With the NAAQS as the
  bellwether of health protection, the Region argues that this new plant’s
  construction and operation will not compromise the respiratory health of
  the surrounding community. RIX Resp. at 10. The Region further asserts
  that the Board should deny review because the petitioner failed to pro-
  vide data or other information refuting the power plant’s air quality
  impact analysis or challenging the NAAQS and increments as insufficient-
  ly protective of the public health. Id. Calpine follows the same line of rea-
  soning in its response to the petition. See Calpine Resp. at 11–12.




  interest in the project to be low (as evidenced by its receipt of only one comment letter)
  and because it did not believe any issues in the draft PSD permit required clarification.
  See Response to Comments at 3–4. Petitioner could have but did not object to this finding
  on appeal. What she cannot do, however, is what she did do: completely change the focus
  of her underlying comment and raise that for the first time before the Board. See, e.g.,
  In re Rockgen Energy Center, 8 E.A.D. 536, 546 (EAB 1998) (issues that are reasonably
  ascertainable but not raised during the comment period are not preserved for review by
  the Board).




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              Ms. Joaquin-Wood contends that it is not sufficient to rely solely on the
         NAAQS to determine whether adverse health impacts will occur as a result
         of emissions from the new plant. Instead, Ms. Joaquin-Wood claims that
         collateral environmental impacts caused by emissions of unregulated pol-
         lutants may be considered in the determination of BACT. Reply Br. at 3–4.
         In this case, Region IX chose Selective Catalytic Reduction (“SCR”) tech-
         nology as BACT. SCR uses ammonia as a catalyst to reduce NOX emissions,
         and some portion of unreacted ammonia apparently escapes from the
         exhaust stack as “ammonia slip.” According to Ms. Joaquin-Wood, ammo-
         nia slip reacts with nitric acid in the ambient air to form ammonium nitrate,
         which can be measured as PM10. Assuming an average ammonia slip of 5
         parts per million dry volume (“ppmvd”) from the SCR, Ms. Joaquin-Wood
         estimates that approximately 438 tons per year (“tpy”) of secondary PM10
         emissions will be added to the air of Sutter County, which is above and
         beyond the plant’s permitted PM10 emissions.12 Id. at 5–6. Ms. Joaquin-
         Wood claims that Region IX’s BACT analysis is flawed because these
         significant secondary impacts were not considered. Id. at 2–8.

              In its supplemental response to petitioner’s reply, the Region con-
         tends, among other things, that its purported failure to consider second-
         ary PM10 emissions associated with the use of SCR as BACT cannot be
         raised for the first time on appeal. Supplemental Response to Petition for
         Review at 1–5 (“Supp. Resp.”). According to the Region, Ms. Joaquin-
         Wood “never raised during the comment period the issue of potential
         environmental effects associated with SCR,” id. at 4, and the allegation that
         secondary PM10 emissions will approach 450 tpy is wholly new.13 Id. at 5.


              12
                   Ms. Joaquin-Wood states:

              Assuming the average ammonia slip over the life of the SCR catalyst is 5 ppmvd,
              the Project would emit about 93 tons/yr of [ammonia]. * * * Further assuming that
              one lb mole of [ammonia] reacts to form one lb mole of [ammonium nitrate], up
              to 438 tons/yr (2,398 lb/day) of secondary PM10 could be formed in the stack and
              downwind assuming adequate [nitric acid] is available.

         Reply Br. at 5–6.
              13
                 Moreover, even if the issue were deemed preserved for review, the Region contends
         that Ms. Joaquin-Wood committed substantial errors in her calculation of secondary PM10
         emissions. The Region states:

              The science of secondary PM formation is far more complex and far less certain
              than presented by Petitioner. To form secondary PM emissions, ambient ammo-
              nia must react with ambient nitrates or sulfates. It is the presence or absence of
              these chemicals in the ambient air that determine[s] the potential for secondary
              PM emissions. It is also extremely difficult to determine the source of those
              ambient ammonia emissions which react with [nitric acid]. Further, the reactivity
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       The only comments on the permit offered by Ms. Joaquin-Wood
  relating to this point read as follows:

             No mention of the effect of the plant’s emissions on
             asthma sufferers has ever been made.

                                  *    *     *    *    *    *    *

             There should be an additional hearing to explain why
             this plant is being allowed to emit * * * 92.4 tons of tiny
             particulate matter into the already polluted air of Sutter
             County.

  Wood Comments at 1. We agree with the Region that the complex issue
  of ammonia slip/secondary PM10 formation from SCR use was not raised
  in these comments. See 40 C.F.R. § 124.13. Indeed, the comments make
  no reference to ammonia as a pollutant of concern, nor do they indicate
  concern regarding SCR as a source of PM10 emissions not contemplated
  by the permit. To the contrary, the comments’ reference to 92.4 tons of
  particulate matter—the amount contemplated by the permit—belies the
  suggestion that they should be read as contemplative of the worry
  expressed on appeal that SCR technology would result in 438 tons of fine
  particulate matter beyond that envisioned by the permit. While it is
  appropriate to hold permitting authorities accountable for a full and
  meaningful response to concerns fairly raised in public comments, such
  authorities are not expected to be prescient in their understanding of
  vague or imprecise comments like those advanced here. “At a minimum,
  commenters must present issues with sufficient specificity to apprise the
  permit issuing authority of the issues being raised. Absent such
  specificity, the permit issuer cannot meaningfully respond to comments.”
  In re Rockgen Energy Center, 8 E.A.D. 536, 547–48 (EAB 1999). This prin-
  ciple is no less important in the context of petitioners not represented by
  counsel. See, e.g., In re Commonwealth Chesapeake Corp., 6 E.A.D. 764,
  772 (EAB 1997).

      Thus, we must deny review on this ground. See In re Knauf Fiber
  Glass, GmbH, 8 E.A.D. 121, 126 n.9 (EAB 1999) (“[n]ew issues raised for



        of the compounds depends on highly variable local conditions, including temper-
        ature and meteorologic conditions. It is, therefore, virtually impossible to quantify
        secondary PM emissions from ammonia slip associated with SCR at this time.

  Supp. Resp. at 6–7 (citations omitted). The Region contends that Ms. Wood’s calculations
  contain too many assumptions to be credible. Id. at 6–7 & n.4.




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         the first time at the reply stage of these proceedings are equivalent to late
         filed appeals and must be denied on the basis of timeliness”).

         C. Amarel Petition

              As explained in Part II.A.1 above, petitions for review of PSD permits
         must be filed within thirty days after the issuance of a final permit deci-
         sion. See supra Part II.A.1; 40 C.F.R. § 124.19(a). Late-filed appeals will be
         dismissed as untimely. In re AES Puerto Rico L.P., 8 E.A.D. 324, 328 (EAB
         1999). Here, the Amarels filed their petition with the Board on September
         29, 1999, more than two months after Region IX’s issuance of Calpine’s
         final PSD permit on July 21, 1999. The Amarels’ petition therefore must be
         dismissed as untimely. See 40 C.F.R. § 124.19(a); AES Puerto Rico, 8 E.A.D.
         at 328–330; Beckman Prod. Servs., 5 E.A.D. 10, 15–16 (EAB 1994).

                                      III. CONCLUSION

            For the foregoing reasons, the petitions for review of the Sutter
         Power Plant PSD permit are denied.

             So ordered.




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