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Notice of Prevention of Significant Deterioration Final Determination for Sumas Energy 2 Electrical Generating Facility in Sumas, WA

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Environmental Protection Agency (“EPA”).


Notice of final action.


This document announces that on March 25, 2003, the Environmental Appeals Board (“EAB”) of EPA remanded in part and denied review in part of two petitions for review of a permit issued for the Sumas Energy 2 (“SE2”) electrical generating facility in Sumas, Washington by EPA, Region 10 and the State of Washington's Energy Facility Site Evaluation Council (“EFSEC”) pursuant to EPA's Prevention of Significant Deterioration of Air Quality (“PSD”) regulations. EFSEC and EPA issued the PSD permit pursuant to the “Agreement for Partial Delegation of the Federal Prevention of Significant Deterioration (PSD) Program,” between EPA and EFSEC dated January 25, 1993 (“PSD Delegation Agreement”) authorized under the resolutions for PSD.


The effective date for final agency action on the SE2 PSD permit is April 17, 2003, the day EFSEC and EPA reissued the PSD permit consistent with the EAB's order. Judicial review of this permit decision, to the extent it is available pursuant to section 307(b)(1) of the Clean Air Act (“CAA”), may be sought by filing a petition for review in the United States Court of Appeals for the Ninth Circuit within 60 days of May 6, 2003.


The documents relevant to the above action are available for public inspection during normal business hours at the following address: EPA, Region 10, 1200 Sixth Avenue, Seattle, Washington 98101. To arrange viewing of these documents, call Daniel Meyer at (206) 553-4150.

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Daniel Meyer, EPA, Region 10, 1200 Sixth Avenue (OAQ-107), Seattle, Washington, 98101.

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This supplementary information is organized as follows:

A. What Action is EPA Taking?

B. What is the Background Information?

C. What did the EAB Decide?

A. What Action Is EPA Taking?

We are notifying the public of a final decision by EPA's EAB on a permit issued by EPA and EFSEC (“permitting authorities”) pursuant to the PSD regulations found at 40 CFR 52.21.

B. What Is the Background Information?

On September 6, 2002, the permitting authorities jointly issued a PSD permit pursuant to Section 165 of the CAA, 42 U.S.C. 7475, 40 CFR 52.21, and the terms and conditions of EFSEC's delegation of authority from EPA under 40 CFR 52.21(u), for what ultimately will be a 660-megawatt natural gas-fired combined cycle electric generation facility that would be located in Sumas, Washington, about one-half mile south of the U.S.-Canadian border. The facility is subject to PSD for nitrogen oxides (“NOX”), volatile organic compounds (“VOC”), particulate matter (“PM”), particulate matter with an aerodynamic diameter less than 10 micrometers 2 (“PM10”), sulfur dioxide (“SO2”) and sulfuric acid mist, (“H2SO4”). The facility would combust only natural gas and employ selective catalytic reduction (“SCR”) and catalytic oxidation technology to limit its NOX, carbon monoxide (“CO”) and SO2 air emissions.

Subsequent to issuance of the PSD permit, the Province of British Columbia (“B.C.’) and Environment Canada petitioned the EAB for review of the permit.

C. What Did the EAB Decide?

On March 25, 2003, the EAB denied B.C.’s petition for review of the permit. The EAB did, however, remand the permit based on Environment Canada's petition for review for the very limited purpose of correcting a typographical error in the final permit which was inadvertently retained from the draft permit.

B.C. raised essentially four arguments in support of its petition for review: (1) That the Best Available Control Technology (“BACT”) analysis failed to consider permit limitations on startup and shutdown operations; (2) that EFSEC failed to consider more stringent Canadian air quality standards in determining BACT; (3) that EFSEC failed to fully consider and respond to public comments; and (4) that SE2's proposal to offset NOX and PM10 emissions by reducing actual emissions elsewhere in the Fraser Valley airshed is Start Printed Page 23988insufficient to offset the added air pollution from the facility.

While the EAB rejected B.C.’s petition based, in part, on B.C.’s failure to properly preserve the majority of these issues for appeal, the EAB also noted that EFSEC had in fact considered and addressed many of B.C.’s concerns. Thus, for example, the EAB concluded that EFSEC had considered those comments that were properly submitted related to startup and shutdown operations and made a number of changes to the draft permit to make it more protective based on these comments. In addition, the EAB found that EFSEC had collected and considered data on ambient air quality, including consideration of Canadian standards, and that B.C. failed to show that EFSEC's determination that air quality concentrations would not exceed standards established to protect human health and the environment was clearly erroneous. The EAB also noted that based on its review of the record before it, it did not appear that the offsets offered by SE2 were intended to meet any requirement within the purview of the federal PSD program. Accordingly, the EAB found that the sufficiency of the offsets were beyond the scope of EAB review.

The Board remanded the PSD permit to EPA and EFSEC, however, to correct a typographical error in the final permit which was inadvertently retained from the draft permit. In a previous permit application, SE2 requested the ability to burn natural gas and fuel oil. The use of fuel oil was rejected by EFSEC through the state's separate site certification process for reasons unrelated to PSD. Although SE2 later agreed to burn only natural gas as evidenced in a revised PSD permit application, the draft PSD permit failed to reflect SE2's concession. The final permit continued to erroneously make references to burning “either fuel.” Consistent with the EAB's order, EPA and EFSEC eliminated all references to the use of the phrase “either fuel” in the final permit through an administrative amendment. EPA and EFSEC reissued the final permit on April 17, 2003.

Pursuant to 40 CFR 124.19(f)(1)(iii), when the EAB orders remand proceedings, for purposes of judicial review, final Agency action occurs upon the completion of remand proceedings. This notice is being published pursuant to 40 CFR 124.19(f)(2), which requires notice of any final agency action regarding a permit to be published in the Federal Register. This notice being published today in the Federal Register constitutes notice of the final Agency action as remand proceedings are complete. If available, judicial review of these determinations under Section 307(b)(1) of the CAA may be sought only by the filing of a petition for review in the United States Court of Appeals for the Ninth Circuit, within 60 days from the date on which this notice is published in the Federal Register. Under Section 307(b)(2) of the Act, this determination shall not be subject to later judicial review in any civil or criminal proceedings for enforcement.

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Dated: April 23, 2003.

L. John Iani,

Regional Administrator, Region 10.

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[FR Doc. 03-11194 Filed 5-5-03; 8:45 am]