Clean Air Act Operating Permit Program; Petitions for Objection to State Operating Permits for Los Medanos Energy Center and Dow Chemical Company

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of final orders on petitions to object to two state operating permits.

SUMMARY:

This notice announces that the EPA Administrator has responded to two citizen petitions requesting EPA to object to operating permits issued to two facilities by the Bay Area Air Quality Management District (“BAAQMD”). Specifically, the Administrator has partially granted and partially denied a petition submitted by Our Children's Earth Foundation (“OCE”) and Californians for Renewable Energy, Inc. (“CARE”) requesting that the Administrator object to the state operating permit issued to Los Medanos Energy Center (“Los Medanos”) in Pittsburgh, California; and denied in full a petition submitted by Communities for a Better Environment (“CBE”) requesting that the Administrator object to the state operating permit issued to Dow Chemical (“Dow”), also located in Pittsburgh. This notice also corrects a non-substantive factual finding in the final order for the Los Medanos petition that OCE submitted late its comments on the draft permit to BAAQMD

Pursuant to section 505(b)(2) of the Clean Air Act (ACT), a petitioner may seek judicial review of any portion of the petition which EPA denied in the United States Court of Appeals for the appropriate circuit. Any petition for review shall be filed within 60 days from the date this notice appears in the Federal Register, pursuant to section 307 of the Act.

DATES:

Copies of the final orders, petitions, and other supporting information are available at the Environmental Protection Agency, Region IX, Air Division, 75 Hawthorne Street, San Francisco, CA 94105. The final orders are also available electronically at: http://www.epa.gov/region07/programs/artd/air/title5/petitiondb/petitions.

FOR FURTHER INFORMATION CONTACT:

Gerardo Rios, Chief, Air Permits Office, EPA Region IX, telephone (415) 972-3974, e-mail r9airpermits@epa.gov.

SUPPLEMENTARY INFORMATION:

EPA approves state and local permitting authorities to administer the operating permit program set forth in title V of the Clean Air Act, 42 U.S.C. 7661-7661f. BAAQMD administers a fully approved title V operating permit program. The Clean Air Act affords EPA the opportunity for a 45-day period to review, and object to as appropriate, operating permits proposed by permitting authorities. Section 505(b)(2) of the Act authorizes any person to petition the EPA Administrator within 60 days after the expiration of this review period to object to a state operating permit if EPA has not done so. Petitions must be based on objections to the permit that were raised with reasonable specificity during the public comment period provided by the state, unless the petitioner demonstrates that it was impracticable to raise these issues during the comment period or the grounds for the issues arose after this period.

I. Los Medanos Energy Center

On September 6, 2001, BAAQMD issued a final title V operating permit to Los Medanos. OCE and CARE (“Petitioners”) submitted a petition to the Administrator on October 12, 2001, seeking EPA's objection to BAAQMD's issuance of the Los Medanos permit. The Petitioners alleged in their petition that the Los Medanos permit (1) improperly included an emergency breakdown exemption condition that incorporates a broader definition of “emergency” than allowed by 40 CFR 70.6(g); (2) improperly included a variance relief condition which is not federally enforceable; (3) failed to include a statement of basis as required by 40 CFR 70.7(a)(5); (4) contained permit conditions that are inadequate under 40 CFR part 70, namely that certain provisions are unenforceable; and (5) failed to incorporate certain changes OCE requested during the public comment period and agreed to BAAQMD.

On May 25, 2004, the Administrator issued an order partially granting and partially denying the petition. The order explains the reasons behind EPA's conclusion that BAAQMD must reopen the permit to make available for public and EPA comment an adequate statement of basis. The order also explains the reasons for denying the Petitioners' remaining claims.

Through this notice, EPA is also correcting a non-substantive factual finding in the final Los Medanos order. Footnote 6 of the order found that OCE had submitted its comments on the draft Los Medanos permit to BAAQMD after the close of the 30-day public comment period. After further review, EPA has determined that OCE actually submitted those comments on time, as OCE submitted its comments on August 1, 2001 and the public comment period ended August 2, 2001.

II. Dow Chemical

On December 1, 2003, BAAQMD issued a final title V operating permit to Dow. CBE (“Petitioner”) submitted a petition to the Administrator on January 12, 2004, seeking EPA's objection to BAAQMD's issuance of the Dow permit. The Petitioner alleged in the petition that EPA must object to the permit because BAAQMD improperly denied Petitioner's request for a public hearing.

The Administrator issued an order denying the petition on July 2, 2004. The order explains the reasons behind EPA's finding that the petitioner failed to demonstrate that the permit was not issued in compliance with the requirements of the Clean Air Act.