Opinion
2021-055-R
08-29-2022
CLEAN AIR COUNCIL, CITIZENS FOR PENNSYLVANIA'S FUTURE, AND CENTER FOR BIOLOGICAL DIVERSITY v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION and RENOVO ENERGY CENTER, LLC, Permittee
For the Commonwealth of PA, DEP: Geoffrey J. Ayers, Esquire For Appellant, Clean Air Council: Alexander G. Bomstein, Esquire Kathryn Urbanowicz, Esquire Joseph Minott, Esquire For Appellant, Citizens for Pennsylvania's Future: Jessica O'Neill, Esquire For Appellant, Center for Biological Diversity: Robert Ukeiley, Esquire For Permittee, Renovo Energy Center: John P. Englert, Esquire Pamela S. Goodwin, Esquire Andrew T. Bockis, Esquire John R. Dixon, Esquire
For the Commonwealth of PA, DEP: Geoffrey J. Ayers, Esquire
For Appellant, Clean Air Council: Alexander G. Bomstein, Esquire Kathryn Urbanowicz, Esquire Joseph Minott, Esquire
For Appellant, Citizens for Pennsylvania's Future: Jessica O'Neill, Esquire
For Appellant, Center for Biological Diversity: Robert Ukeiley, Esquire
For Permittee, Renovo Energy Center: John P. Englert, Esquire Pamela S. Goodwin, Esquire Andrew T. Bockis, Esquire John R. Dixon, Esquire
OPINION AND ORDER ON APPELLANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT
THOMAS W. RENWAND, CHIEF JUDGE AND CHAIRMAN
Synopsis
Partial summary judgment is granted to the Appellants on the question of whether the sulfur dioxide and volatile organic compound limits in a plan approval fail to meet the requisite air quality standards. The Appellants have demonstrated that there are no material facts in dispute and they are entitled to summary judgment as a matter of law.
OPINION
Introduction
This matter involves an appeal filed by Clean Air Council, Citizens for Pennsylvania's Future and Center for Biological Diversity (Appellants) challenging an air quality plan approval issued by the Department of Environmental Protection (Department) to Renovo Energy Center, LLC (Renovo Energy Center or Permittee). The plan approval allows the construction and operation of a 1,240 megawatt two-unit dual-fueled electric power plant in the Borough of Renovo, Clinton County, Pennsylvania. Each unit contains a combustion turbine and heat recovery steam generator with natural gas fired duct burners. The facility is dual-fueled in that it can be fueled by either natural gas or ultra-low sulfur diesel. According to Renovo Energy Center, the facility will be powered by natural gas, but will also be capable of running on ultra-low sulfur dioxide for brief periods when there is an interruption in the natural gas supply. This plan approval is a modification of an earlier plan approval that authorized a 950 megawatt facility without duct burners.
Renovo Energy Center has filed a motion for summary judgment, while the Appellants and the Department have moved for partial summary judgment. The parties have filed responses and replies, and the motions are ripe for disposition. This Opinion addresses the Appellants' Motion for Partial Summary Judgment.
Summary Judgment Standard
Summary judgment is appropriate when the record, including pleadings, depositions, answers to interrogatories, and other related documents, shows that there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035.1-1035.2; Sunoco Pipeline, L.P. v. DEP, 2021 EHB 43, 45 (citing Williams v. DEP, 2019 EHB 764, 765-66); Camp Rattlesnake v. DEP, 2020 EHB 375, 376. In evaluating whether summary judgment is appropriate, the Board views the record in the light most favorable to the non-moving party. Sunoco Pipeline, 2021 EHB at 45; Stedge v. DEP, 2015 EHB 31, 33. All doubts as to whether genuine issues of material fact remain must be resolved against the moving party. Eighty-Four Mining Co. v. DEP, 2019 EHB 585, 587 (citing Clean Air Council v. DEP, 2013 EHB 404, 406).
Required Control Technologies
The Appellants assert that there are two errors in emissions limits in the plan approval that are appropriate for resolution by summary judgment. They contend that, based on the applicable law and evidence in the record, the plan approval sets the emissions limits too high for (1) sulfur dioxide from the combustion turbines and (2) volatile organic compounds from the auxiliary boilers.
Emissions rates set in air quality plan approvals are to be minimized in accordance with state and federal standards set forth in Pennsylvania's Air Pollution Control Act, Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. §§ 4001 et seq., and the federal Clean Air Act, 42 U.S.C. §§ 7401 et seq. When a plan approval authorizes a new emissions source at a certain level, the federal New Source Review program applies. 25 Pa. Code §§ 127.81 et seq and 127.201 et seq If the new source is in an area that attains the National Ambient Air Quality Standards for a particular pollutant, the Prevention of Significant Deterioration program applies. 42 U.S.C. §§ 7470-7492; 40 CFR, Part 52; 25 Pa. Code, Chapter 127, Subchapter D. If the source is located in an area that does not attain those air pollution standards, the Nonattainment New Source Review program applies. 42 U.S.C. §§ 7501 et seq.; 25 Pa. Code, Chapter 127, Subchapter E.
The parties' briefs contain well-drafted summaries of the control technologies required by state and federal law and we borrow from them here. Additionally, the Board appreciates the parties' limited use of acronyms in their filings.
Where the new source would emit a pollutant that is not too prevalent in the ambient air in the area, i.e., an attaining pollutant, the applicant must lower its emissions to a standard known as Best Available Control Technology. 42 U.S.C. § 7475(a)(4); 25 Pa. Code § 127.83. For nonattaining pollutants, a new pollution source must achieve the Lowest Achievable Emissions Rate. 42 U.S.C. §§ 7501(3); 7503(a)(2); 25 Pa. Code § 127.205(1). Additionally, Pennsylvania has its own standard, known as Best Available Technology. 25 Pa. Code § 121.1. All three standards require some form of minimization of pollution from proposed new facilities.
Waiver of Issues
Before turning to the specifics of the Appellants' motion, we first address Renovo Energy Center's contention that the Appellants have waived all arguments pertaining to Best Available Technology. Renovo Energy Center asserts that, while the Appellants' notice of appeal raises objections pertaining to Best Available Control Technology and Lowest Achievable Emissions Rate, it raises no objection pertaining to Best Available Technology.
As noted above, Best Available Control Technology and Lowest Achievable Emissions Rate are federal standards that have been incorporated into Pennsylvania's air program. Additionally, Pennsylvania's Air Pollution Control Act authorizes the Department "to require that new sources [of air pollution] demonstrate in the plan approval application that the source will reduce or control emissions of air pollutants, including hazardous air pollutants, by using the best available technology." 35 P.S. § 4006.6(c). Pennsylvania's air regulations require that an application for plan approval must show that "the emissions from a new source will be the minimum attainable through the use of the best available technology." 25 Pa. Code § 127.12(a)(5). Best Available Technology is defined as "[e]quipment, devices, methods or techniques as determined by the Department which will prevent, reduce or control emissions of air contaminants to the maximum degree possible and which are available or may be made available." 25 Pa. Code § 121.1.
Renovo Energy Center is correct that objections not raised in a party's notice of appeal are waived. Clean Air Council v. DEP, 2019 EHB 417, 420. Penn Coal Land, Inc. v. DEP, 2017 EHB 337, 367-68; Rhodes v. DEP, 2009 EHB 325, 327-28. However, objections raised in general terms are sufficient. Croner, Inc. v. Department of Environmental Protection, 589 A.2d 1183, 1187 (Pa. Cmwlth. 1991). As we stated in Clean Air Council, 2019 EHB at 420, "notices of appeal are to be read broadly, and we will be reluctant to find waiver so long as an objection falls within the 'genre of the issue' contained in the notice of appeal."
The Appellants argue that Best Available Technology, Best Available Control Technology and Lowest Achievable Emissions Rate, as applied to emissions limits, are all within the same "genre of issue," i.e., the regulatory analysis for determining appropriate air pollutant technology and emissions limitations under the New Source Review program. They point out that the Department often combines all three standards into one analysis, citing, e.g., the Department's Application Review Memo for Plan Approval where several sections combine the analysis for the three standards. (Ex. B to Appellants' Motion for Partial Summary Judgment). Moreover, Best Available Control Technology has been referred to as "the federal analog of [Best Available Technology]." Residents Opposed to Black Ridge Incinerator (ROBBI) v. DER, 1993 EHB 675, 724 (cited in Snyder v. DEP, 2015 EHB 857, 866-67).
Renovo Energy Center argues that the Appellants' inclusion of Best Available Control Technology in their notice of appeal does not automatically implicate arguments pertaining to Best Available Technology. Renovo Energy Center points out that the definitions of both standards are not identical and the analysis for determining whether each standard has been met is not necessarily the same. In support of its argument, Renovo Energy Center cites Snyder, 2015 EHB at 871, in which the Board noted that the Department's discretion in conducting an analysis under the Best Available Technology standard "is considerably broader than EPA's discretion to determine BACT [Best Available Control Technology]."
Snyder involved an in-depth analysis of whether Best Available Technology standards had been met. In support of their argument that such standards had been met, the Department and permittee relied on a federal case discussing EPA's application of Best Available Control Technology. The Board questioned whether it should be relying on federal jurisprudence on Best Available Control Technology rather than the very clear standards on Best Available Technology set forth in Pennsylvania's air program. 2015 EHB at 866, 868-69.
Here, we are simply being asked to determine whether the Appellants' notice of appeal acts as a waiver to all arguments pertaining to Best Available Technology. We find that it does not. While it is true that the Appellants specifically mention Best Available Control Technology in their objection regarding greenhouse gas emissions (Notice of Appeal, Objection B), the notice of appeal generally challenges various emissions limits set forth in the plan approval as being "erroneous and improper pursuant to air quality standards." In our view, the Appellants have not limited themselves to one type of analysis, but, rather, their challenge is that the Department has improperly set the emissions limits in the plan approval based on the applicable air quality standards.
As former Chief Judge Krancer explained in Ainjar Trust v. DEP, 2001 EHB 59, affd, 806 A.2d 402 (Pa. Cmwlth. 2002):
While it may be true that the Notice of Appeal does not contain the recitation of the issue in exactly the same words as set forth in the Motion for Summary Judgment, we think that this genre of issue was fairly raised in the Notice [of Appeal]. The Board has jurisdiction over issues not specifically recited in a notice of appeal if the issue falls within the scope of a broadly-worded objection found in the notice of appeal.Id. at 66 (citing Croner, supra, et al)
Likewise, in Rhodes, 2009 EHB at 327, we stated:
[G]iven the strict requirement to file a notice of appeal within 30 days of receiving notice of the Department's action and our general distaste for trap-door litigation, we have been relatively indulgent when it comes to interpreting less than precise notices of appeal
We find that the various control technologies - Best Available Technology, Best Available Control Technology and Lowest Achievable Emissions Rate - fall within the same genre of issue raised in the Appellants' notice of appeal, i.e., the question of whether the emissions limits set forth in the plan approval comply with air quality requirements. We do not believe that the Appellants have limited themselves to a discussion of only Best Available Control Technology and Lowest Achievable Emissions Rate, to the exclusion of Best Available Technology.
The purpose of deeming non-stated objections waived "is to ensure that the party filing the appeal identifies the scope of the challenge to the Department's action to allow proper discovery and to prevent surprise at the time of hearing." Center for Coalfield Justice v. DEP, 2016 EHB 523, 526. According to the Appellants, the discovery conducted in this case included interrogatories and deposition questions regarding Best Available Technology as well as Best Available Control Technology and Lowest Achievable Emission Rate. Accordingly, there is no surprise to either the Department or Renovo Energy Center that this issue is a part of the appeal. We conclude that Appellants have not waived arguments pertaining to Best Available Technology.
We now turn to the Appellants' Motion for Partial Summary Judgment which seeks summary judgment on the following issues: The Appellants argue that the plan approval sets the emissions limits too high for 1) sulfur dioxide emissions from the combustion turbines and 2) volatile organic compounds from the auxiliary boilers.
Sulfur Dioxide Emissions Limit
The proposed facility's combustion turbines will emit sulfur dioxide which is generated by burning natural gas containing a small amount of sulfur. The sulfur content of the natural gas is limited to 0.4 grains per hundred standard cubic feet of gas. (Ex. C to Appellants' Motion for
Partial Summary Judgment, p. 7816, 7826.) The plan approval sets the limit for emissions of sulfur dioxide from the combustion turbines at 0.001336 pounds per million British thermal units (lb/MMBtu) (corresponding to 5.94 pounds per hour). The Appellants assert that this emissions limit does not properly reflect Best Available Technology and should have been set at 0.00112 lb/MMBtu.
Citations to pages of exhibits are to the parties' Bates stamped numbering where applicable.
The Appellants point to various Department sources indicating that 0.00112 or 0.0012 lb/MMBtu was the appropriate emissions limit for sulfur dioxide from the combustion turbines. Noteworthy is the Department's Application Review Memo for the Plan Approval (Plan Approval Review Memo) which states, "Based on a natural gas sulfur content of 0.4 [grains per hundred standard cubic feet], the potential [sulfur dioxide] emission rate as proposed by [Renovo Energy Center] will be 0.0012 lb/MMBtu assuming that all of the sulfur will convert to [sulfur dioxide]." (Ex. B to Appellants' Motion for Partial Summary Judgment, p. 10321.) Additionally, in an email thread among the Department's reviewing engineers, David Shimmel, Chief of the New Source Review Section of the Department's Air Quality Program, stated on September 2, 2020: "The 0.4 [grains per hundred standard cubic feet] translates into around 0.00112 lb/MMBtu." (Ex. I to Appellants' Motion for Partial Summary Judgment, p. 613.)
Mr. Shimmel confirmed his calculation of 0.00112 lb/MMBtu as Best Available Technology in his deposition testimony. (Ex. L to Appellants' Reply, Tr. 46:25-47:2.) He then rounded that figure up to 0.0012 and stated he could "live with" the rounded-up figure of 0.0012 if "LHV" were used (Id. at Tr. 46:7-9), i.e., "low heating value" of the fuel. (Id. at Tr. 46:10-13.) At no point did he arrive at a calculation of 0.001336, the limit ultimately included in the plan approval. Given Mr. Shimmel's calculation of 0.00112 lb/MMBtu, rounded up to 0.0012, he was asked in his deposition how the plan approval ended up with the higher limit of 0.001336 lb/MMBtu. Mr. Shimmel did not explain the higher number and stated that he did not recall how it ended up in the plan approval. (Id. at 43:18-23; 47:23-48:1.) Air Quality Program Engineer Paul Waldman was also asked to explain how the higher number ended up in the plan approval. He too stated that he did not know. (Ex. M to Appellants' Reply, Tr. 40:20-41:5.)
Indeed, neither the Department nor Renovo Energy Center could point to any testimony or other evidence in the record that explained how the limit of 0.001336 lb/MMBtu was arrived at in the plan approval. Nor have they provided a satisfactory answer in their responses to the Appellants' motion as to why the plan approval set a limit of 0.001336 lb/MMBtu for sulfur dioxide despite all indications to the contrary that the Department's calculations showed a limit of 0.00112 lb/MMBtu meeting Best Available Technology. The Department explains why it believes a rounding up of 0.00112 to 0.0012 is appropriate, but never explains how the plan approval ended up with a higher limit of 0.001336. Indeed, the Department states in its response to the Appellants' motion that "it can be argued that [a limit of] 0.0012 should have been used." (Department's Brief in Support of Response, p. 3.)
Instead of explaining how or why the sulfur dioxide emission limit was set at 0.001336, both the Department and Renovo Energy Center make the argument that it doesn't matter because setting the limit at 0.00112 (or 0.0012) will achieve no real difference in the facility's actual emissions. They assert that a limit of 0.001336 increases the facility's potential to emit by only a small amount - the Department's calculations say by slightly over two tons per year, while Renovo Energy Center's calculations say by slightly under nine tons per year. Moreover, both parties assert that even this small increase in emissions is unlikely to occur as long as Renovo Energy Center is required to comply with a sulfur content limit of 0.4 grains per hundred standard cubic feet of gas for its fuel.
Renovo Energy Center uses the calculated rate of 0.00112 in its discussion of this matter, while the Department uses the "rounded up" figure of 0.0012.
In response, the Appellants argue that even if the Department and Renovo Energy Center's claims are true, i.e., that the difference in emissions is relatively small, those excess emissions are nonetheless illegal and can amount to significant harm on the public when emitted year after year, for decades. Additionally, they assert that using the correct limit in the plan approval is necessary to ensure that Renovo Energy Center is properly employing the requisite control technologies.
Renovo Energy Center and the Department appear to argue that setting the sulfur dioxide emissions limit at 0.00112 or 0.0012 is pointless because it cannot or will not be monitored. The Department states, "while it can be argued that 0.0012 should have been used, that emission rate is artificial in that, while a stack test will eventually confirm compliance, it will only be the fuel sulfur limit that yields that compliance." (Department's Brief in Support of Response to Appellants' Motion for Partial Summary Judgment, p. 3.) Renovo Energy Center states that the plan approval does not require the testing of sulfur dioxide through continuous emissions monitoring but only through periodic stack testing. (Permittee's Brief in Support of Response to Appellants' Motion for Partial Summary Judgment, p. 4.) The Appellants counter this by pointing to the plan approval which requires "the monthly emissions of sulfur oxides (SO2)…to demonstrate compliance with the emission limitations." (Ex. C to Appellants' Motion for Partial Summary Judgment, p. 7820, 7829.) The Appellants also assert that sulfur dioxide emissions are to be monitored on a continuous basis pursuant to federal regulations, citing 40 C.F.R. § 97.630-835 (as set forth in the Department's Plan Approval Review Memo, Ex. B to Appellants' Motion for Partial Summary Judgment, p. 10299.) Moreover, if the argument being put forward by the Department and Renovo Energy Center is that the plan approval does not require sufficient testing to demonstrate that the Renovo facility is meeting its sulfur dioxide emissions limit from the combustion turbines, that is not a compelling argument.
Based on our review of the summary judgment record and the parties' motions, briefs and supporting documents, we find that the Appellants have adequately demonstrated that the Department erred in setting an emissions limit of 0.001336 lb/MMBtu for sulfur dioxide in the plan approval. The Appellants have demonstrated that the Department's technical staff who reviewed Renovo Energy Center's plan approval application determined that an emissions limit of 0.00112 represented Best Available Technology, and neither the Department nor Renovo Energy Center has adequately countered that evidence or presented a persuasive argument to the contrary.
Moreover, if the Department and Renovo Energy Center are correct in their assertion that lowering the sulfur dioxide emissions limit from 0.001336 to 0.00112 (or 0.0012) results in no real change in emissions, then the reverse is also true - raising the limit from 0.00112 to 0.001336 brings no real benefit to Renovo Energy Center. As the Appellants point out, "…the inverse is equally applicable: if Renovo Energy Center will comply with the lower number either way, then it can easily accept that number, and the Department can easily change the plan approval to match." (Brief in Support of Appellants' Motion for Partial Summary Judgment, p. 6.) In that case, we question why the plan approval was issued with the higher number. No one from the Department has been able to answer that question. Nor have Renovo Energy Center or the Department provided a convincing argument in support of the higher emissions limit. Where the goal is to achieve compliance with state and federal air emission standards, we question why the Department would choose an emissions limit that is higher than what the Department has determined is both achievable and calculated to comply with the applicable air quality standards.
Finally, Renovo Energy Center argues that even if the Department's selection of 0.001336 as the emissions limit was an error, it is not a material error justifying a remand or revision to the permit. It cites Shuey v. DEP, 2005 EHB 657, in support of its argument. In Shuey, we held:
[I]t is not enough to argue there were minor errors in the permitting process. A trial before the Board should not be a giant game of "gotcha." If there are errors in the permit, such errors must be material in order to warrant a revocation or remand of the permit. Giordano v. DEP, 2001 EHB 713, 736 ("With regard to all of the alleged procedural defects, no purpose would be served by nullifying or remanding the permit modification on such grounds it is generally not enough for an appellant to prevail to pick at errors that the Department might have made along the way if the Department's final action is nevertheless appropriate." Citing O'Reilly v. DEP, 2001 EHB 19, 39-40).Id. at 712-13.
We agree that it is not enough for an appellant to simply argue that there were minor errors in the permitting process; in order to prevail, the appellant must demonstrate that the errors were material. Id. at 712. Here, the error alleged by the Appellants does not involve the permit application process but, rather, the substance of the permit itself. Where an emissions limit in a plan approval is subj ect to Best Available Technology and fails to meet that standard, the appellant has alleged a material error.
The only question left is whether the sulfur dioxide emissions limit should be 0.00112 or the rounded-up figure of 0.0012. We find that the Department has presented no justification for rounding up the emissions limit. In setting the current limit of 0.001336 the Department chose not to round that number up (or down). If the Department were in the practice of rounding up (or rounding down) the permit limits, we believe it would have done so with the 0.001336 figure. Instead, it kept that number intact out to several digits. On that basis we find that the Appellants have demonstrated that 0.00112 lb/MMBtu is the emissions limit for sulfur dioxide from the combustion turbines that represents Best Available Technology and is the emissions limit that should have been set forth in the plan approval.
Pursuant to the Board's rules, when a motion for summary judgment is made and supported, the opposing party may not rest on mere allegations or denials, but by its response must show why summary judgment is not warranted. 25 Pa. Code § 1021.94a(1). We find that neither the Department nor Renovo Energy Center has met this standard. Therefore, summary judgment is granted to the Appellants on this issue.
Volatile Organic Compounds Emissions Limit
The plan approval sets the emissions limit for volatile organic compounds from the auxiliary boilers at 0.002 lb/MMBtu and 0.15 tons per year. According to Renovo Energy Center, the auxiliary boilers are used only during cold startups to provide sealing steam to the steam turbine generator and to warm the steam turbine generator rotor; they are not used to generate electricity. (Ex. 3 to Renovo Energy Center's Response, Sec. 1, p. 7-8.) The Appellants assert that the proper emissions limit for volatile organic compounds from the auxiliary boilers is 0.0015 lb/MMBtu (and the corresponding annual limit), as this number represents the Lowest Achievable Emissions Rate.
The parties do not dispute that volatile organic compound emissions from the Renovo Energy Center facility are subject to the Lowest Achievable Emissions Rate standard, which is required for major sources of pollution in non-attainment areas. 42 U.S.C. § 7503. The Lowest Achievable Emissions Rate is defined as:
(i) The rate of emissions based on the following, whichever is more stringent:
(A) The most stringent emission limitation which is contained in the implementation plan of a state for the class or category of source
unless the owner or operator of the proposed source demonstrates that the limitations are not achievable
(B) The most stringent emission limitation which is achieved in practice by the class or category of source.25 Pa. Code § 121.1. Thus, the Lowest Achievable Emissions Rate is the more stringent of either the most stringent emission limitation contained in the state implementation plan or which is achieved in practice.
When the Appellants submitted public comments on the plan approval application, they asserted that the proposed emissions factor of 0.002 lb/MMBtu and 0.15 tons per year did not meet New Source Review requirements because another power plant in operation - Hickory Run Energy Station - was subj ect to lower limits. (Ex. G to Appellants' Motion for Partial Summary Judgment, p. 4608-09.) The plan approval for the Hickory Run Energy Station facility sets a limit for volatile organic compound emissions from the auxiliary boilers at 0.0015 lb/MMBtu and 0.14 tons per year. (Ex. J to Appellants' Motion for Partial Summary Judgment, p. REC-3080; Department's Response to Appellants' Statement of Undisputed Material Facts, para. 13.)
In its Comment Response document, the Department seemed to agree with the Appellants, stating that "with respect to the [Best Available Technology] limits proposed for the auxiliary boiler at the Hickory Run facility, the Department has established the same [carbon monoxide] and [volatile organic compound] limits for Renovo Energy Center." (Ex. D to Appellants' Motion for Partial Summary Judgment, p. 7701.) Despite that statement, Renovo Energy Center's plan approval ended up with higher limits: 0.002 lb/MMBtu and 0.15 tons per year for volatile organic compounds. (Ex. C to Appellants' Motion for Partial Summary Judgment, p. 7808.)
The Appellants conducted discovery on this issue. In response to an interrogatory asking "whether the Department intends for the carbon monoxide and volatile organic compound emissions limits of the [Renovo Energy Center] auxiliary boilers in the Plan Approval to match those of the Hickory Run power plant facility," the Department responded "Yes, the Department did intend for those limits to match." (Ex. H to Appellants' Motion for Partial Summary Judgment, para. 18.)
The Department's New Source Review Section Chief, David Shimmel, was asked about the discrepancy between the Hickory Run numbers and the Renovo Energy Center numbers, and he responded, "we just rounded it [the emissions limit in the Renovo Energy Center plan approval] to three significant digits." (Ex. L to Appellants' Reply, Tr. 24:5-22.) When asked whether there was "anything stopping the Department from putting the volatile organic compound limit at 0.0015 instead of 0.002," he responded, "Not really." (Id. at Tr. 25:6-9.)
Both the Department and Renovo Energy Center challenge the Appellants' contention that the figures of 0.0015 lb/MMBtu and 0.014 tons per year represent the Lowest Achievable Emissions Rate. They contend that the Appellants have not established the material facts necessary to support their argument. The Department argues that the Appellants have not demonstrated that the Hickory Run facility's auxiliary boilers were in operation before the Department issued the plan approval for the Renovo Energy Center. The Department contends that the Appellants' only support for this assertion is an article in The Business Journal dated June 17, 2020, entitled "Hickory Run Power Station Begins Generating Electricity." Without adequate factual support for this material fact, argues the Department, the Appellants are not entitled to summary judgment on this issue. Notably, the Department does not dispute that the Hickory Run facility was in operation at the time of the issuance of Renovo Energy Center's plan approval, nor does the Department come forth with any evidence that the Hickory Run facility was not in operation at that time. It simply challenges the document cited by the Appellants in support of their statement that the Hickory Run facility was in operation prior to issuance of the plan approval to Renovo Energy Center. (Department's Response to Appellants' Statement of Undisputed Material Facts, para. 14.)
The Appellants counter that it is enough for them to show that the Department set another comparable facility's volatile organic compound emissions limit at 0.0015 in order to demonstrate Lowest Achievable Emissions Rate. The Appellants also point to Renovo Energy Center's response to their Statement of Undisputed Material Facts in which Renovo Energy Center agrees that the Hickory Run facility's auxiliary boilers became operational before the Department issued the plan approval to Renovo Energy Center. (Permittee's Response to Appellants' Statement of Undisputed Material Facts, para. 14.) Additionally, Mr. Shimmel in his deposition acknowledged that the Hickory Run power plant is an "existing" facility. (Ex. L to Appellants' Reply, Tr. 19:24-20:15.)
We believe there is adequate support in the record for finding that the Hickory Run facility was operational prior to the issuance of the plan approval for the Renovo Energy Center, and the Department has not come forward with anything in the record to dispute this statement, as required by 25 Pa. Code § 1021.94a(1).
Renovo Energy Center argues, first, that the Hickory Run plan approval also rounds the 0.0015 figure to 0.002 and, second, that even if we accept the 0.0015 figure as the emissions limit set forth in Hickory Run's plan approval, there is no evidence in the record that Hickory Run has actually been able to achieve that limit. As to the first argument, Renovo Energy Center points to a table in the Hickory Run plan approval setting forth a volatile organic compound limit of 0.002 lb/MMBtu. The section referenced by Renovo Energy Center is a table in the Hickory Run plan approval entitled "Emission Restriction Summary." (Ex. J to Appellants' Motion for Partial Summary Judgment, p. REC 3112-14). The summary lists the volatile organic compound limit as 0.002 lb/MMBtu. However, in the section entitled "Emission Restrictions," the plan approval sets the limit for volatile organic compound emissions at 0.0015 lb/MMBtu. (Id. at p. REC 3080.) Further, in its Response to Appellants' Statement of Undisputed Material Facts, the Department does not dispute the 0.0015 figure. (Department's Response to Appellants' Statement of Undisputed Material Facts, para. 13.)
Renovo Energy Center argues that even if the emissions limit for Hickory Run is 0.0015, the Appellants have not demonstrated that the rate of 0.0015 has actually been achieved in practice at the Hickory Run facility. Renovo Energy Center goes on to state that it is impossible for the Appellants to produce any data showing that the Hickory Run facility has actually achieved volatile organic compound emissions from its boilers no higher than 0.0015 lb/MMBtu because the plan approval does not require any emissions monitoring or stack testing for volatile organic compounds in the auxiliary boiler emissions. Due to this nonexistence of data, argues Renovo Energy Center, it is impossible for the Appellants to meet their burden - in other words, simply because the Department placed the 0.0015 emissions limit in Hickory Run's permit does not mean that limit is achievable, and there is no way to tell if it is being achieved because no testing is required.
In Groce v. Department of Environmental Protection, 921 A.2d 567, 574 (Pa. Cmwlth. 2007), the Commonwealth Court explained that in order to be a source of Lowest Achievable Emissions Rate, an emissions rate must meet various criteria, including that "it must be achievable or achieved in practice." It is difficult to fathom that the Department would have placed an emissions limit in a permit that it did not believe was achievable. We believe that the Department's selection of 0.0015 lb/MMBtu for the Hickory Run power plant supports the finding that the Department believes this emissions rate is achievable.
As further support for their assertion that the Hickory Run emissions limit of 0.0015 is an indication of the Lowest Achievable Emission Rate, the Appellants cite the Environmental Protection Agency's (EPA) Draft 1990 New Source Review Manual (the Draft Manual), which states that "a permit requiring the application of a certain technology or emission limit to be achieved for such technology usually is sufficient justification to assume the technical feasibility of that technology or emission limit." (Ex. K to Appellants' Motion for Partial Summary Judgment, p. B.7.) Renovo Energy Center argues that the Appellants assign too much weight to the Draft Manual, which states that it "does not establish binding regulatory requirements." (Id. at 1 (Preface).) Renovo Energy Center further cites cases holding that strict application of the Draft Manual is not mandatory. We agree that the Draft Manual is not binding. Snyder, 2015 EHB at 872. Nonetheless, we find the language persuasive. Additionally, while the cases cited by Renovo Energy Center do not require a strict application of the Draft Manual, they nevertheless acknowledge that it is relevant in evaluating Best Available Control Technology and Lowest Achievable Emissions Rate analyses.
The cases cited by Renovo Energy Center are In re General Motors, PSD Appeal No. 01-30, 10 E.A.D. 360, 2002 WL373982 (EAB March 6, 2002); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999); United States v. Ameren Missouri, No. 4:11 CV 77 RWS, 2019 WL 1384580, at *3 (E.D. Mo. Mar. 27, 2019).
Secondly, Renovo Energy Center argues that the Appellants have misapplied the Draft Manual by referring to the section on Best Available Control Technology analysis rather than Lowest Achievable Emissions Rate analysis. In response, the Appellants point to the section of the Manual dedicated to Lowest Achievable Emissions Rate which provides guidance on determining Lowest Achievable Emissions Rate. One recommended source for determining the Lowest Achievable Emissions Rate is "preconstruction or operating permits issued in other nonattainment areas." (Ex. K to Appellants' Response, p. G.3.)
The EPA Environmental Appeals Board has addressed this issue in Pio Pico Energy Center, 16 E.A.D. 56 (EAB 2013), cited by the Appellants in their brief in support of their reply. One of the issues examined in that case was an emissions limit that was higher in the issued permit than in the draft permit. The Appeals Board held:
[P]ermit writers retain discretion to set Best Available Control Technology levels that "do not necessarily reflect the highest possible control efficiencies but, rather will allow permittees to achieve compliance on a consistent basis.". . .At the same time, the permit issuer has an obligation "to adequately explain its rationale for selecting a less stringent emission limit, and that rationale must be appropriate in light of all the evidence in the record."Id. at 131 (quoting In re Newmont Nevada Energy Investment, LLC, 12 E.A.D. 429, 440 (EAB 2005)) (emphasis in original). The Appeals Board went on to say:
The existence of a similar facility with a lower emissions limit creates an obligation for the permit applicant and permit issuer to consider and document whether the same emission level can be achieved at the proposed facility.16 E.A.D. at 133. Significantly, a permit issuer must "justify the selection of an emission limit that is higher than that achieved by. . . or permitted at " a similar source. Id. at 134 (Emphasis added.)
The only basis provided by Renovo Energy Center for the selection of a higher emissions limit for volatile organic compounds is its assertion that its auxiliary boilers will emit less of other pollutants if the emissions limit for volatile organic compounds is higher. Renovo Energy Center states that "a facility with the best emissions performance for one pollutant typically cannot meet the lowest emission level for another pollutant." (Permittee's Brief in Support of Response, p. 8.) It points out that although the Hickory Run boiler has a lower volatile organic compound limit than the Renovo facility (0.0015 vs. 0.0020 lb/MMBtu), it has a higher limit for nitrogen oxide (0.011 vs. 0.006 lb/MMBtu). (Permittee's Brief in Support of Response, p. 8) (citing David Shotts' Expert Report, Ex. 30 to Permittee's Motion for Summary Judgment, p. 5.) In response, the Appellants assert that Renovo Energy Center has not demonstrated that Hickory Run's higher nitrogen oxide limit is due to its lower volatile organic compound limit. Moreover, argue the Appellants, even if true, it does not negate the fact that a lower limit can be achieved for volatile organic compound emissions and, where such limit is achievable, it should be adopted as the Lowest Achievable Emissions Rate. In support of this argument, the Appellants again cite Pio Pico, supra, in which the EPA Environmental Appeals Board stated, "[S]imply stating that PM [particulate matter] emissions vary even on identical turbine models…is not sufficient to satisfy this obligation [to document whether a lower emission level can be achieved at the proposed facility.]" 16 E.A.D. at 133-34.
The Department has provided no basis for selecting a higher volatile organic compound emissions limit for the Renovo Energy Center facility than for the Hickory Run facility other than its explanation that it rounded up the number in Renovo Energy Center's plan approval. The Department has provided no support for its assertion that it is proper to round up an emissions limit, particularly one that is subject to the Lowest Achievable Emissions Rate standard.
In conclusion, we find that the Appellants have established that the Renovo Energy Center facility is subject to the Lowest Achievable Emissions Rate for volatile organic compounds and the record supports a finding that 0.0015 lb/MMBtu is the Lowest Achievable Emissions Rate. The Department and Renovo Energy Center have not come forward with any convincing evidence to the contrary. Therefore, we find that the Appellants have demonstrated that they are entitled to summary judgment on this issue.
ORDER
AND NOW, this 29th day of August, 2022, it is ordered that the Appellants' Motion for Partial Summary Judgment is granted.
MICHELLE A. COLEMAN Judge, BERNARD A. LABUSKES, JR. Judge, STEVEN C. BECKMAN Judge