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July 3, 1990 PSD Appeal No. 88-11 8.47
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8.47
Before me is a motion filed by the permit applicant, Columbia Gulf Transmission Company, and the permit issuer, the State of Kentucky, which are jointly requesting a stay of the proceedings on EPA Region IV's appeal from the State's permit determination. [SEE FOOTNOTE 1] If a stay is granted, the applicant intends to supplement the state administrative record with new factual information which the applicant believes will confirm the wisdom of the State's original permit determination. The information concerns site-specific costs relevant to the State's determination of "best available control technology" (BACT) for the proposed facility. This information was not in the administrative record of the original BACT analysis of the
____________________ facility, a fact which prompted EPA Region IV to file its appeal of the permit determination alleging, inter alia, that evidence of these costs would be needed to support the State's BACT determination. In their motion, the State and the permit applicant express the belief that staying the proceedings would be the most expeditious means of disposing of this case; they claim that a remand, for example, would not be desirable because it might trigger an entirely new and, presumably, time-consuming public review and comment period under 40 CFR Section 124.19. The proposed stay mechanism, on the other hand, would circumvent this process, but only if the State determines, after evaluating the new information, that the original permit determination was correct (and therefore does not require change). The stay, as proposed, would restrict opportunity to comment on the new information to the Region, which was the only commenter on the original permit determination. The movants reason that there is no logical basis for soliciting comment from the public since it previously had the opportunity - - but did not exercise it -- to comment on precisely the same permit conditions. (The movants appear to concede the necessity, however, of soliciting comment from a broader audience if the State's review produces a substantially revised permit.) In opposing the motion, the Region makes several arguments. First, it argues that the administrative record is already closed and the applicant should not now be permitted to submit information it should have submitted 1 and a half years ago when Kentucky was in the process of developing the draft permit determination. According to the Region,
Region's Response at 2.
This argument is not cause for denial of the motion. It is true the
regulations contemplate a permit decision being made on the basis of the
administrative record as it exists at the close of the comment period on the
draft permit, see, e.g., 40 CFR Section 124.18(b) (1); and it is also true
the permit applicant's additional information may have been in existence or
readily available on or before that date (thus seeming to eliminate most
legitimate excuses for not submitting the information earlier).
Nevertheless, it does not appear to me that the regulations are inflexible
in this respect, [SEE FOOTNOTE 2] or that any prejudice would result from
granting the motion (the Region, for example, does not claim it will suffer any). Insofar as the possibility of prejudice to the public is concerned, it will not incur any because, under the movants' proposal, the public is given the right to comment if the permit is subsequently revised; and, if it is not revised, further public participation would be unnecessary since, as the movants correctly point out, the public has already had an opportunity to comment on the terms of the unrevised permit. [SEE FOOTNOTE 3] In my opinion, if the State is willing to reopen the record to accept and review additional information, it should be the one to decide the matter in the absence of any prejudice to third parties. The purpose of closing the record to receipt of additional evidence is presumably to bring order to the decision-making process, enabling permit issuers such as the State to
____________________ manage their dockets efficiently and to bring finality to permit proceedings. In this manner, the permit issuer can avoid potentially endless rounds of delays and reconsideration of matters previously decided. Thus, so long as the permit issuer is willing to countenance the disruptions attendant to reopening the record, there is no apparent reason why the record has to be kept closed. I conclude therefore that this matter is principally one for the State to decide. In opposing the motion, the Region also suggests that it should have the opportunity to submit new information on the appropriate level of control currently representing BACT for the applicant's turbine. The Region explains that in reviewing the PSD permit application, it tolled its assessment of available control technologies for BACT at the time the public comment period closed. [SEE FOOTNOTE 4] It therefore argues that if the record is subsequently reopened to admit new information supplied by the applicant, then the State must also "consider anew" what technology represents BACT. Region Response at 4. I agree, although "consider anew" perhaps exaggerates the State's obligation (better to say: the State will have to update its BACT
____________________
Pennsauken County Resource Recovery Facility, PSD Appeal No. 88-8, at 7, n. 11 (November 10, 1988). determination after giving full consideration to the information submitted by both the applicant and the Region). The need to base the permit determination on current information is fundamental to any determination of "best available control technology," for old technologies are constantly being replaced by newer and more advanced ones; and in the absence of overriding considerations -- for example, those bearing on the orderly administration of the permit program -- information on the latest available technologies should ordinarily receive consideration. [SEE FOOTNOTE 5] Therefore, whenever the original permit application is being updated at the behest of the permit applicant, it is only fair that the applicant's new information be balanced with other contemporaneous information relevant to the BACT determination. Accordingly, the parties' motion is granted, with the proviso that the State shall not only give the Region an opportunity to comment on the applicant's new information, but shall also permit the Region to submit additional information of its own to ensure that the BACT determination is fully
_____________________________ contemporaneous with the State's updating of the permit determination. So ordered.
Dated: JUL 3 1990 I hereby certify that copies of the foregoing Order on Motion for Stay in the matter of Columbia Gulf Transmission Company, PSD Appeal No. 88-11, were sent by First Class Mail to the following persons:
William C. Eddins, Director |