Delta Energy Center

Plain-English summary

Calpine Corporation and Bechtel Enterprises proposed the Delta Energy Center, an 880-megawatt electric generating facility in California. Californians for Renewable Energy challenged provisions of the facility's final prevention of significant deterioration permit. The Board held that the organization did not meet either regulatory path to standing because it had not participated in the draft-permit process and did not limit its claims to changes between the draft and final permits. The Board dismissed the petition and struck unrelated submissions from the record.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 52.21, 124.13, and 124.19
• Outcome: The petition for review was dismissed because the petitioner lacked standing.
• Key point: A petitioner must participate in the draft-permit process, or limit its challenge to changes between the draft and final permit, to obtain EAB review.

Full text (EPA EAB public release)

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

                         )

In the Matter of: )
)
Delta Energy Center )
) PSD Appeal No. 99-76
Bay Area Air Quality )
Management District )
PSD Permit App. No. 19414 )
_____)

           ORDER GRANTING MOTION TO DISMISS


On December 23, 1999, Calpine Corporation and Bechtel

Enterprises (“Calpine/Bechtel”), the owner and operator of a

proposed 880-megawatt electrical generating facility known as

the Delta Energy Center, filed a Motion for Leave to File and

Expedited Motion to Dismiss (“Motion to Dismiss”) seeking the

dismissal of a petition for review filed by Californians for

Renewable Energy (“CRE”), a California nonprofit corporation.

In its petition, filed November 18, 1999, CRE challenges

provisions of a Final PSD Permit determination (“Final

Permit”) issued to Calpine/Bechtel by the Bay Area Air Quality

Management District (BAAQMD) on October 21, 1999.
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In their Motion to Dismiss, Calpine/Bechtel maintain that

CRE lacks standing to petition for review of the Final Permit

under the regulations at 40 C.F.R. Part 124 governing issuance

of PSD permits. EPA Region IX and EPA’s Office of Air and

Radiation (“EPA”) adopted the same position and filed a motion

on December 29, 1999, requesting leave to file as amici in

support of the Motion to Dismiss. EPA Motion for Leave to

File and Memorandum in Support of Expedited Motion to Dismiss

Petition for Review (“EPA’s Motion”). BAAQMD also

subsequently concurred in the Motion to Dismiss and

incorporated it by reference in its “Response Brief of the Bay

Air Quality Management District,” dated January 14, 2000

(“BAAQMD”). CRE objected to granting the Motion to Dismiss by

filing its Response to the Applicant’s Motion for Leave to

File and Expedited Motion to Dismiss (“CRE’s Response”) on

January 4, 2000. We grant Calpine/Bechtel and EPA leave to

file their motions, and after considering the above filings as

well as the petition for review, grant the Motion to Dismiss,

as explained below.

We agree with Calpine/Bechtel’s arguments that CRE failed

to meet the standing requirements necessary for obtaining

review of PSD permits as set forth in 40 C.F.R. Part 124.
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Under 40 C.F.R. § 124.19(a), parties may satisfy standing in

one of two ways: (1) by submitting comments on a draft permit

or participating in public hearings on a draft permit or (2)

failing this, by challenging the draft permit “only to the

extent of changes from the draft to the final permit

decision.” Failure to fulfill either of these two

requirements disqualifies the petitioner from appealing the

issuance of the final PSD permit determination.1

CRE meets neither standing test.   Neither the petition

for review nor CRE’s Response alleges or demonstrates that CGE

either participated in a public hearing on the draft permit

(issued August 18, 1999) or submitted comments on it.2 Nor

1See In re Sutter Power Plant, PSD Appeal Nos. 99-6 & 99-

73, slip op. at 16 (EAB, Dec. 2, 1999), 8 E.A.D. ; see also
In re Rockgen Energy Center, PSD Appeal No. 99-1, slip op. at
7-8 (EAB, Aug. 25, 1999), 8 E.A.D. . These decisions are
distinguishable from the situation where a petitioner who
independently satisfied the standing requirement may include
within a petition for review issues that had been raised by a
different commenter. See In re Kawaihae Cogeneration Project,
7 E.A.D. 107, 127 n.27 (EAB 1997)(citing In Re Masonite Corp.,
5 E.A.D. 551, 559 n.9 (EAB 1994).
2See In re Kawaihae Cogeneration Project, 7 E.A.D. 107,
120 (EAB 1997) (“The purpose of requiring all reasonably
ascertainable issues to be raised during the public comment
period is so that the permit issuer can address potential
problems with the draft permit before the permit becomes
final.” [Emphasis in original; citations omitted]).
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does CRE purport in any way to limit its request for

administrative review to changes from the draft to the final

permit. CRE’s lack of standing is confirmed by a letter from

BAAQMD to Calpine/Bechtel’s counsel in which BAAQMD relates

that “[BAAQMD] did not receive written or oral comment from

the petitioner.” Motion to Dismiss, Exhibit 2, Letter from

Robert N. Kwong, District Counsel, BAAQMD, to Jeff Harris,

Ellison & Schneider (Dec. 22, 1999). The letter also lists

changes from the draft to the Final Permit. We agree with

Calpine/Bechtel that the changes are “technical,” and that CRE

did not address them in its petition for review. Motion to

Dismiss at 6. Rather, the broad ranging objections to the

Final Permit that CRE makes in its petition for review are

ones that CRE could have but failed to raise during the public

comment period. See 40 C.F.R. § 124.13 (“All persons * * *

who believe any condition of a draft permit is inappropriate *

• • must raise all reasonably ascertainable issues and submit

all reasonably available arguments supporting their position

by the close of the public comment period * * *.”).

In response to the Motion to Dismiss, CRE suggests that

its participation in a hearing before the California Energy
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Commission (“CEC”) invests CRE with the necessary standing to

petition for review of the final permit. CEC possesses

special licensing authority for power plants of 50 megawatts

or greater, and the issuance of a federal PSD permit by a

local air pollution control district such as the BAAQMD is a

predicate step in the CEC’s state siting and licensing

process. See BAAQMD Response at 4-8. Nonetheless, CRE’s

appearance before the CEC is irrelevant to a determination of

standing to challenge BAAQMD’s permit decision. BAAQMD, not

CEC, issued the PSD permit and is the state agency to which

EPA, under 40 C.F.R. § 52.21(u), delegated its authority to

implement the PSD program, including implementation of the

public notice and comment procedures set forth in 40 C.F.R.

Part 124. See EPA’s Motion at 2 (stating that BAAQMD was

EPA’s delegate to operate the PSD program). Highlighting the

separate roles performed by the two entities is the fact that

BAAQMD identified CEC as one of five commenters3 having

submitted written comments on the draft PSD permit. Nor was

3The BAAQMD identified the commenters as “(1) U.S.

Environmental Protection Agency; (2) California Air Resources
Board; (3) Sierra Research for Calpine; (4) the California
Energy Commission (“CEC”); and (5) Jim MacDonald, a resident
of Pittsburg, CA.” Motion to Dismiss, Exhibit 2, Letter from
Robert N. Kwong, District Counsel, BAAQMD, to Jeff Harris,
Ellison & Schneider (Dec. 22, 1999).
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BAAQMD’s role hidden from the public. Among other things, it

published notice in the Contra Costa Times on August 24, 1999,

announcing that it was providing interested persons with the

opportunity to submit written comments on the draft PSD permit

for a 30-day period. Administrative Record at 2579. CRE did

not take advantage of this opportunity, and thus cannot

contend that it has satisfied standing requirements.

We also find without merit CRE’s argument, first raised

in response to the Motion to Dismiss, that the submission of

comments to BAAQMD by Mr. James B. MacDonald, described as a

“corporate member” of CRE, established CRE’s standing to

petition for review. The administrative record and the facts

asserted by CRE simply do not support the requisite common

participation between CRE and Mr. MacDonald in the BAAQMD

permit proceedings. For example, Mr. MacDonald did not hold

himself out as a representative of CRE in his comments on the

draft permit; CRE’s petition did not identify Mr. MacDonald’s

comments as those upon which CRE was relying to demonstrate

that it had raised issues during the public comment period;

and a written request by Mr. MacDonald for CRE’s assistance,

produced by CRE in response to the Motion to Dismiss, was made

after the public comment period had expired. See CRE’s
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Response, Exhibit A, Letter from James B. MacDonald to Michael

E. Boyd, Director of CRE (Nov. 1, 1999). Moreover, the

specific assistance sought by Mr. MacDonald made no reference

to an appeal of the PSD Permit or an appeal to the EAB;

instead, the assistance sought referred to a class action

against BAAQMD and others.4

Finally, CRE, citing its lack of legal expertise and

funds to hire counsel, asserts that it is entitled to a more

deferential standard of permit review, one which the Board has

often accorded petitioners unrepresented by legal counsel.

See, e.g., In re Knauf Fiber Glass, GmbH, PSD Appeal Nos. 98-3

to 98-20, slip op. at 9 (EAB, Feb. 4, 1999), 8 E.A.D.

(“Despite the strict standard for review, the Board tries to

construe petitions filed by persons unrepresented by legal

counsel broadly.”); accord In re Envotech, L.P., 6 E.A.D. 260,

268 (EAB 1996). The Board finds CRE’s claim without merit,

for CRE is not the type of pro se petitioner we have accorded

deferential treatment in the past. Unlike the other pro se

4In his letter to CRE, Mr. MacDonald requests “legal

assistance in a class action suit against the City of
Pittsburg, BAAQMD and CEC concerning the approval [of Delta
Energy Center].”
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petitioners, CRE holds itself out to be a purveyor of expert

legal assistance in regard to new energy projects in

California. CGE’s articles of incorporation expressly

identify the “specific purposes” of the corporation as

“supply[ing] * * * legal assistance to planning, conservation

• • • and neighborhood groups in regards to new energy

projects in the state of California,” “giving legal advice,”

and “employ[ing] legal counsel.” Motion to Dismiss, Exhibit

3, Articles of Incorporation for Petitioner Californians for

Renewable Energy (Aug. 30, 1999). In sum, as an organization

claiming access to legal expertise in matters directly related

to this type of proceeding (even if financial constraints made

obtaining such access difficult), CRE is distinguishable from,

and does not merit the same deferential treatment as, an

unrepresented petitioner not expected to be minimally versed

in the applicable law.5

For the foregoing reasons, we find that CRE lacks

standing to file a petition for review of the Final Permit,

5By ruling that CRE is not entitled to such deference, we

do not mean to imply that giving deference in this case would
necessarily affect the outcome, for we do not reach that
issue.
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and accordingly grant Calpine/Bechtel’s Motion to Dismiss.6

So ordered.



                              ENVIRONMENTAL APPEALS BOARD



                              By:          /s/
                                    Ronald L. McCallum
                              Environmental Appeals Judge

Dated: 02/09/00

6Several submissions were received from a number of

individuals and entities in addition to those submitted in the
ordinary course of this appeal. Since we are dismissing the
sole petition for review on grounds of lack of standing, we
see no reason to burden the record with those additional
submissions. Accordingly, all submissions that either were
not requested in writing by the Board’s Clerk or are not cited
in this decision are officially stricken from the record.
 CERTIFICATE OF SERVICE

 I hereby certify that copies of the forgoing Order Granting

Motion to Dismiss in the matter of Delta Energy Center, PSD Appeal
No. 99-76, were sent to the following persons in the manner
indicated:

Certified Mail,
Return Receipt Requested: Michael E. Boyd
Californians For Renewable
Energy
821 Lakeknoll Drive
Sunnyvale, CA 94089

                             Jeff Harris
                             Ellison & Schneider
                             2015 H Street
                             Sacramento, CA 95814

                             Robert Kwong
                             District Counsel
                             BAAQMD
                             939 Ellis Street
                             San Francisco, CA    94109

                             M. Lea Anderson
                             Air & Radiation Law Office
                             Office of General Counsel
                             U.S. EPA
                             401 M St., SW.
                             Washington, DC 20460

                             Ann H. Lyons
                             U.S. EPA
                             Region IX
                             75 Hawthorne Street
                             San Francisco, CA 94105

Dated: 02/09/00 /s/
Annette Duncan
Secretary