2-12-08 Gascoyne 500 comment letter
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100 First Street SW irst Street SW Cedar Rapids, Iowa 52404 Tel. 319-362-2120 Fax 866-484-2373 info@plainsjustice.org http://www.plainsjustice.org Dakota Resource Council Rocky Mountain Office of Environmental Defense Plains Justice National Parks and Conservation Association Sierra Club February 12, 2008 Terry L. O‟Clair, Director Division of Air Quality North Dakota Department of Health 918 E. Divide Avenue Bismarck, North Dakota 58501-1947 RE: Comments on North Dakota’s Response to the U.S. Department of Interior’s Findings that Gascoyne 500 Would Adversely Impact Visibility at Theodore Roosevelt National Park Dear Mr. O‟Clair: Dakota Resource Council, the Rocky Mountain Office of Environmental Defense, Plains Justice, National Parks and Conservation Association, and Sierra Club hereby respectfully submit the following comments on the North Dakota Department of Health (NDDH) January 7, 2008 letter written in response to the U.S. Department of Interior‟s July 26, 2007 letter on the draft Gascoyne 500 permit. Plains Justice has requested in separate letters an extension of the public comment period on this matter, but NDDH has not yet issued a decision on these requests. These comments are being submitted to comply with the current February 13, 2008 comment deadline. In the event that NDDH extends or reopens the comment period on the matter, we reserve the right to revise, amend, and/or supplement these comments. 1. ...
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| Publié par | Mephar |
| Nombre de lectures | 23 |
| Langue | English |
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100 First Street SW 100 First Street SW Cedar Rapids, Iowa 52404 Tel. 319-362-2120 Fax 866-484-2373 info@plainsjustice.org http://www.plainsjustice.org Dakota Resource Council Rocky Mountain Office of Environmental Defense Plains Justice National Parks and Conservation Association Sierra Club February 12, 2008
Terry L. O‟Clair, Director Division of Air Quality North Dakota Department of Health 918 E. Divide Avenue Bismarck, North Dakota 58501-1947 RE: Comments on North Dakota’s Response to the U.S. Department of Inte500 Would Adversely Impact Visibility atrior’s Findings that Gascoyne Theodore Roosevelt National Park Dear Mr. O‟Clair: Dakota Resource Council, the Rocky Mountain Office of Environmental Defense, Plains Justice, National Parks and Conservation Association, and Sierra Club hereby respectfully submit the following comments on the North Dakota Department of Health (NDDH) January 7, 2008 letter written in response to the U.S. Department of Interior‟s July 26, 2007 letter on the draft Gascoyne 500 permit. Plains Justice has requested in separate letters an extension of the public comment period on this matter, but NDDH has not yet issued a decision on these requests. These comments are being submitted to comply with the current February 13, 2008 comment deadline. In the event that NDDH extends or reopens the comment period on the matter, we reserve the right to revise, amend, and/or supplement these comments. 1. NDDH Must Accept Public Comment on All Aspects of Its Response to the U.S. Department of Interior Comments and on the Gascoyne 500 Permit Application and Revised Draft Permit
In its public notice, NDDH has stated that it is only accepting comments “on the effects of visibility in the Class I areas” during this current public comment period. Yet, NDDH has provided an extensive response to all of the issues raised by the U.S. Department of Interior (USDOI) and this response serves as the NDDH Analysis for its disagreement with the USDOI finding that Gascoyne 500 would adversely impact visibility at USDOI‟s July 26, 2007 letter included detailed commentsTRNP. The regarding the draft prevention of significant deterioration (PSD) permit for the Gascoyne 500 power plant.1 Specifically, in addition to finding that the Gascoyne 500 facility would adversely impact visibility at Theodore Roosevelt National Park (TRNP), USDOI provided comments regarding the failure to consider alternative coal-fired technologies such as the integrated gasification combined cycle (IGCC) process, failure to require lower emission limits for sulfur dioxide (SO2), nitrogen oxides (NOx), particulate matter (PM10failure to require continuous compliance monitoring for PM), and mercury, 10, failure to properly model impacts on the Class I SO2increments, and failure to properly model visibility impacts. The National Park Service also submitted comments to NDDH on June 26, 2006 regarding the modeling done for the initial Gascoyne 500 PSD permit application and many of those issues persisted in the revised Gascoyne 500 PSD permit application.2 All of the USDOI comments regarding inherently lower emitting process, lower emission limits, and continuous compliance monitoring are directly applicable to the impacts of the proposed Gascoyne 500 facility on TRNP. Lower emissions would equate to lower visibility impacts at TRNP. Further, the resolution of USDOI‟s concerns with the NDDH methodology for the cumulative SO2Class I increment analysis directly affects the applicability of the visibility protection requirements of the PSD program under the Clean Air Act and state and federal regulations. That is, if Gascoyne 500 would contribute to an SO2increment violation at TRNP, then Westmoreland Power, Inc. (Westmoreland) would have the burden of proof to demonstrate to the satisfaction of the Federal Land Manager (FLM) that the Gascoyne 500 facility would not adversely impact air quality related values (AQRVs) including visibility at TRNP. If Gascoyne 500 would not cause or contribute to any increment violations at TRNP, then the FLM has the burden to prove to NDDH that the Gascoyne 500 facility would adversely impact AQRVs including visibility at TRNP. 40 C.F.R. §§52.21(p)(5) and (4), respectively, incorporated by reference into North Dakota regulations at N.D.A.C. 33-15-15-01.02. See also Clean Air Act (CAA) §165(d)(1)(C)(iii) and (ii), respectively. Gascoyne 500‟s cumulative Class I SO2increment modeling, which both USDOI and the undersigned parties believe is significantly flawed, showed that 98% of the 24-hour average SO2Class I increment would be consumed at TRNP. Yet, if more proper methodologies were used to estimate the true impacts on 24-hour average SO2 concentrations at TRNP, including modeling of maximum actual 24-hour average SO2 1 letter to NDDH and all attachments are included as Attachment 1A copy of the USDOI‟s July 26, 2007 to this letter. 2 this letter to . See June 26, 2006 letter from the National Park Service to NDDH, Attachment 2
emission rates for contributing sources, it is extremely likely that Gascoyne 500 would be considered to contribute to SO2increment violations at TRNP.3 Thus, under a more proper cumulative SO2increment analysis, Gascoyne 500 would contribute to SO2 increment violations at TRNP, and Westmoreland would have the burden to prove to USDOI that Gascoyne 500 would not adversely impact AQRVs including visibility at TRNP.4 Thus, NDDH cannot legally limit public comment on its response to the USDOI adverse impact determination solely to the visibility impacts. All of the issues raised by USDOI are inherently tied to the potential impacts on visibility at TRNP from Gascoyne 500. In addition, NDDH has failed to follow the process set out in the PSD regulations for notification to the FLMs regarding the Gascoyne 500 permit and for notification to the public regarding NDDH‟s noncurrence with the FLM‟s finding of adverse impact. Had NDDH properly followed the process for FLM notification and for nonconcurrence with the USDOI‟s adverse impact finding, NDDH would have published its disagreement with the USDOI‟s findings concurrently with the Gascoyne 500 permit application and draft permit, and the public would have had the opportunity to comment on all documents concurrently. NDDH cannot now legitimately preclude such public comment on all aspects of the Gascoyne 500 permit because it has issued its disagreement with the USDOI findings after the initial Gascoyne 500 draft permit comment period. Specifically, NDDH was required to provide written notice of the Gascoyne permit application within 30 days of receipt and within 60 days of the public hearing on the draft Gascoyne 500 permit. See 40 C.F.R. §52.21(p)(1) incorporated by reference into North Dakota regulations at N.D.A.C. 33-15-15-01.02. Westmoreland submitted a revised PSD permit application for Gascoyne 500 in January 20075, 6 NDDH did not . 3past modeling analyses by both EPA and NDDH using SO Indeed, 2emission rates for existing sources that more closely reflects maximum actual short term average emission rates have found existing violations of the 24-hour average SO2increment as well as the 3-hour average SO2increment at TRNP. See Dispersion Modeling Analysis of PSD Class I Increment Consumption in North Dakota and Eastern Montana, U.S. EPA, May 2003; and Calpuff Class I Area Analysis for Milton R. Young Generating Station, May 24, 1999, North Dakota Department of Health. 4 Further, if Gascoyne 500 would contribute to an SO2increment violation, no permit can be issued for the construction of Gascoyne 500 until the violations are resolved. See 40 C.F.R. §52.21(k)(2) incorporated by reference into N.D.A.C. 33-15-15-02.1. See also CAA §§163(a) and (b), 165(a)(3). Further, EPA‟s longstanding contemporaneous interpretation of the statutory and regulatory provisions for the PSD increments clearly mandate that, in an area with existing PSD increment violations, the violations “must be entirely corrected before PSD sources which affect the area can be approved.” (See 45 Fed.Reg. 52678, August 7, 1980). 5 While the NPS did receive the original Gascoyne 500 permit application promptly i n June 2006, Westmoreland revised and resubmitted the Gascoyne 500 permit application that included updated pages (including information regarding Class I area impacts) dated January 2007. 6 NDDH argues in its January 7, 2008 letter to USDOI that there were “[o]nly minor editorial and technical corrections” made in Westmoreland‟s January 2007 revised permit application for Gascoyne 500. We strongly disagree. For example, a review of the Class I increment modeling results presented
provide that revised PSD permit application to the National Park Service until May 8, 2007, the PSD permit application supporting documentation to the National Park Service until May 22, 2007, and the complete modeling files until June 7, 2007.7 These submittals were well beyond 30 days of the NDDH receipt of the January 2007 revised Gascoyne 500 PSD permit application. In addition, NDDH held the public hearing for the draft Gascoyne 500 permit on June 21, 2007, far short of the 60 -day notice required under 40 C.F.R. §52.21(p)(1) and N.D.A.C. 33-15-15-01.02. Thus, NDDH utterly failed to meet its regulatory requirements under the state and federal PSD regulations regarding notice and submittal to the FLMs. Any argument from NDDH that the USDOI failed to timely submit its adverse impact determination are invalid in light of NDDH‟s failure to meet state and federal regulatory requirements with respect to notification to the FLMs. Further, NDDH has not properly followed the state and federal regulations with respect to notice of its nonconcurrence with the USDOI‟s finding that Gascoyne 500 would adversely affect visibility in TRNP. Pursuant to the federal PSD regulations incorporated by reference into N.D.A.C. 33-15-15-01.02, if NDDH “finds that [the FLM‟s adverse impact analysis] does not demonstrate to the satisfaction of [NDDH] that an adverse impact on visibility will result in the Federal Class I area, [NDDH] must,in the notice of public hearing on the permit application, either explain his decision or give notice as to where the explanation can be obtained.” 40 C.F.R. 52.21(p)(3), [emphasis added.] The clear intent of this regulation is that the public be afforded the opportunity to comment on the NDDH decision that it does not concur with the USDOI findings of adverse impacts regarding Gascoyne 500along withthe opportunity to comment on the permit application and draft permit. Yet, NDDH‟s public notice states that the public is only allowed to comment on “the effects of visibility in the Class I areas.” The fact that Westmoreland has submitted additional information supporting the imposition of lower NOxand SO2BACT emission limits to reduce visibility impacts and that NDDH is now proposing a revised draft permit with lower BACT emission limits only provides further justification that NDDH has to accept public comment on more than just the visibility impacts of Gascoyne 500.8 Westmoreland‟s November14, 2007 submittal to NDDH includes additional information on BACT for several pollutants, an evaluation of IGCC technology for Gascoyne 500, and on the Class I area modeling for Gascoyne 500. Westmoreland‟s submittal is really a supplement to its PSD permit application and NDDH‟s revised draft permit is based on new information that was not available at the time of the original public comment period on Gascoyne 500. in Table 8-6 of the January 2007 Gascoyne 500 permit application shows significant changes in the modeled increment results for all averaging periods and for both SO2and PM10as compared to the version of Table 8-6 in the June 2006 Gascoyne 500 permit application. Such cha nges must have resulted from additional modeling analyses, which would necessitate a new review by the USDOI. 7 See July 26, 2007 letter to NDDH from USDOI, attachment entitled “Department of the Interior Comments on the Westmoreland Energy Gascoyne Powe r Plant Prevention of Significant Deterioration (PSD) Permit Application June 30, 2007” at 8. Included at Attachment 1 to this letter. 8 See2007 submittal from Westmoreland Power, Inc., to NDDH) and C Attachments A (November 14, (revised draft Permit to Construct for Gascoyne 500) to January 7, 2008 letter from NDDH to USDOI.
For all of the reasons discussed above, NDDH has improperly limited comment in its public notice to only issues relating to Gascoyne 500‟s visibility impacts. Accordingly, NDDH must allow comments on all aspects of its response to USDOI, the Gascoyne 500 permit application (as revised by Westmoreland‟s November 14, 2007 submittal to NDDH) and the revised draft Gascoyne 500 permit. NDDH must issue a revised public notice making it clear that public comment is invited on all of the Gascoyne 500 permit documents and provide at least 30 days for comment. 2. North Dakota Has Failed to Follow State and Federal PSD Regulations for Use of a Non-Guideline Model for the Gascoyne 500 Class I Increment and Air Quality Related Values Modeling Analyses NDDH cannot take any further action on the Gascoyne 500 permit until it submits justification to EPA, and receives written EPA approval, for use of a nonregulatory version of the CALPUFF model (i.e., a “nonguideline model”) for the Class I area modeling (i.e., SO2, NO2and PM10Class I increment modeling and AQRV modeling including visibility) conducted for the Gascoyne 500 permit. See 40 C.F.R. §52.21(l)(1) and (2); 40 C.F.R. Part 51, Appendix W, Section 3.2. Further, the final written approval from EPA must be made available for public review and comment pursuant to the procedures of N.D.A.C. 33-15-15-01.2 (subsection g. Public Participation which replaces North Dakota‟s incorporation by reference of 40 C.F.R. 52.21(q)). As discussed in the National Park Service‟s June 26, 2006 letter to NDDH, Westmoreland used a nondefault dispersion setting in its Class I area modeling with CALPUFF (i.e., MDISP=2) rather than the EPA default of using Pasquill-Gifford (P-G) dispersion coefficients (i.e., MDISP = 3).9 In the NDDH analysis finding that the USDOI‟s adverse impact determination regarding Gascoyne 500 isincorrect, NDDH addresses this issue by restating its response to the National Park Service‟s June 26, 2006 letter that [t]he value of 2 for MDISPwas included in the State‟s protocol [dated April 30, 2004, that was orally] approved by EPA under the North Dakota and EPA MOU.10 NDDH further states: We also noted that EPA had, in writing, given preliminary approval of the MOU CALMET–CALPUFF modeling method.11 9 June 26, 2006 letter Seefrom John Bunyak, National Park Service, and Sandra Silva, U.S. Fish and Wildlife Service, to NDDH. Attachment 2 to this letter. 10 January 7, 2007 let ter from NDDH to USDOI, response to comment 3.a. at 9. 1 1 Id.
The “MOU” NDDH is referring to is the North Dakota and EPA Memorandum of Understanding (MOU), signed February 13, 2004, which pertained to how NDDH was to conduct the additional modeling for its periodic Class I area SO2increment analysis. The MOU did not pertain to how NDDH would conduct SO2or other pollutant increment modeling in the context of issuing a permit to construct a new or modified PSD source. The MOU also did not in any way pertain to AQRV impact modeling such as visibility modeling. Further, the MOU did not specifically state that EPA was authorizing the use of anything other than P- In fact, the MOU states that “[t]heG dispersion in its modeling. state may use versions of CALMET and CALPUFF acceptable under 40 C.F.R. Part 51, Appendix W, as amended at 68 Fed.Reg. 18440 (April 15, 2003).”12 EPA has made clear that the version of CALPUFF acceptable under 40 C.F.R. Part 51 Appendix W is the version with regulatory default settings, including use of P-G dispersion by setting MDISP = 3 in the CALPUFF model. As discussed below, any deviation from the regulatory default settings would constitute a non-guideline model which requires written approval from EPA after public notice and comment. Specifically, EPA has stated: The regulatory version of CALPUFF is that version that has been tested, along with its specific default options, and functions satisfactorily against a standard criteria of sources , building configurations, and receptor information. . .The regulatory CALPUFF default setting is MDISP = 3, which utilizes the Pasquill-Gifford (P-G) dispersion coefficients, as referenced in Appendix W to 40 CFR Part 51, A.4(j), (k). These regulatory defaults implement the modeling recommendations as described in the document entitled „Interagency Workgroup on Air Quality Models (IWAQM) Phase 2 Summary Report and Recommendations for Modeling Long Range Transport Impacts‟ (EPA-454/R-98-019, Dec. 1998). March 16, 2006 EPA Memorandum from Dennis Atkinson, EPA Model Clearinghouse Director, to Kay T. Prince, Chief, Regulatory Planning Branch, with subject “Dispersion Coefficients for Regulatory Air Quality Modeling in CALPUFF” at 1. Attachment 3 to this letter. This EPA memo further states: It is possible that there could be some scenarios and specific source configurations for which the use of a non-regulatory dispersion option in long range transport applications is appropriate. This has to be 12 February 13, 2004 MOU at 2 (Issue of Agreement 1).
demonstrated subject to Section 3.2.2. of Appendix W of 40CFR Part 51. EPA Regional Offices are willing to review case-by-case demonstrations that support the use of a non-regulatory approach. Subject to section 3.2.2 of Appendix W, acceptability of a model is a Regional Office responsibility and subject to approval from the Regional Administrator. Id. clearly, use of any type of dispersion other than P-G dispersion in CALPUFF Soat 2. modeling for the Gascoyne 500 Class I area modeling would have to be technically justified to EPA and approved by the Regional Administrator for use in the Gascoyne 500 permit modeling. North Dakota has committed to follow EPA‟s modeling guidelines in its PSD permievident by North Dakota‟s adoption of the Such commitment is tting program. requirement in 40 C.F.R. §52.21(l)(1) that all estimates of ambient air impacts by PSD permit applicants be based on the requirements of EPA‟s Guideline on Air Quality Models in 40 C.F.R. Part 51, Appendix W. See N.D.A.C. 33-15-15-02.1.13 In prior PSD SIP submittals, NDDH has provided written commitments to EPA to follow all requirements of EPA‟s Guideline on Air Quality Models in PSD permitting.14 Further, North Dakota has committed to obtain written EPA approval for modifications of modeling requirements specified in Appendix W. According to the North Dakota and Federal PSD regulations: Where an air quality model specified in appendix W of part 51 of this chapter (Guideline on Air Quality Models) is inappropriate, the model may be modified or another model substituted. Such a modification or substitution of a model may be made on a case-by-case basis or, where appropriate, on a generic basis for a specific state program. Written 13 N.D.A.C. Section 33-15-15-01.2 amends the incorporation by reference of 40 C.F.R. §52.21(l)(1) to read: All estimates of ambient concentrations required under this chapter shall be based on applicable air quality models, technical data bases (including quality assured air quality monitoring results), and other requirements specified in appendix w of 40 CFR 51 ("guideline on air quality models" as it exists on January 30, 2004) as supplemented by the "North Dakota guideline for air quality modeling analyses". These documents are incorporated by reference. Technical inputs for these models shall be based upon credible technical data approved in advance by the department. In making such determinations, the department shall review such technical data to determine whether it is representative of actual source, meteorological, topographical, or local air quality circumstances. However, NDDH‟s modeling contact, Steve Webber, has stated that the “North Dakota guideline for air quality modeling analyses” is “very much out of date and no longer utilized” and that North Dakota relies “exclusively on the Federal (EPA) modeling guideline.” July 14, 2006 email from Steve Webber to Vicki Stamper (consultant to Environmental Defense). Thus, North Dakota‟s regulations require PSD permit applicants to follow the EPA modeling guidelines and requirements at 40 C.F.R. §52.21(l)(1). 14 57 e.g., See, Fed.Reg. 28619 (June 26, 1992) in which EPA quotes a February 14, 1992 letter from NDDH committing to follow all requirements of the EPA‟s Guideline on Air Quality Models in PSD permitting. EPA approved this state commitment letter as part of the North Dakota PSD SIP at 40 C.F.R. §52.1820(c)(22)(ii).
approval of the Administrator must be obtained for any modification or substitution. In addition, use of a modified or substituted model must be subject to notice and opportunity for public comment under procedures developed in accordance with [40 C.F.R. §52.21(q)] of this section. 40 C.F.R. §52.21(l)(2) incorporated by reference into North Dakota regulations at N.D.A.C. 33-15-15-01.2.15 Thus, in order for a PSD permit applicant or a state to use a modified version of a regulatory model, the state must receivewritten As discussed above,approval from EPA. North Dakota has never received a formal written notice of final approval from EPA on its modeling protocol used for its periodic SO2 MOU TheClass I increment analysis. does not clearly authorize use of a nonregulatory version of CALPUFF and it also does not represent a final action by EPA.16 Further, EPA has never provided a final written approval of the North Dakota modeling protocol for the periodic Class I SO2increment analysis.17In fact, in a letter dated August 17, 2006 letter to Reed Zars regarding the Dakota Resource Council‟s Petition to EPA to initiate rulemaking to correct the SO2 increment violations in North Dakota, EPA stated as follows: EPA has had questions about the modeling protocols and techniques for estimating emissions developed by North Dakota. We entered into a Memorandum of Understanding with North Dakota to establish a process for addressing these questions. EPA issued a preliminary statement in June 2005 indicating that we were inclined to agree that North Dakota currently has the discretion to interpret its State Implementation Plan to allow such practices. However, EPA is continuing to evaluate whether the modeling practices employed in North Dakota are appropriate and has not yet reached a final decision on these issues. Until EPA completes this evaluation, it is premature for the Agency to base any decision regarding the adequacy of the North Dakota SIP on the methods the state is using to evaluate consumption of the PSD increment. August 17, 2006 Letter from EPA to Reed Zars at 2 (included as Attachment 4 to this letter). Even if the MOU or the EPA‟s verbal or preliminary approval of the modeling protocol could be considered “final approval” (which all evidence shows is not the case), such approval would only pertain to the State‟s periodic Class I SO2increment analysis. 15 provision incorporated by reference into North Dakota‟s regulations, the term “Administrator”In this means the Administrator of EPA, as stated in N.D.A.C. 33 -15-15-01.2. 16 See Joint Stipulation of Dismissal in Dakota Resource Council vs. Environmental Protection Agency, No. 04-1994. 17 In a June 30, 2005 letter to NDDH, EPA stated that it was its “preliminary view” that the modeling techniques used by North Dakota were consistent with the Clean Air Act. This d oes not constitute a final approval by EPA.
EPA has not given any form of approval for the use of non-default turbulence-based dispersion in the Gascoyne 500 SO2increment modeli none of EPA‟s priorng. Further, preliminary or verbal statements regarding the state‟s protocol for its periodic SO2Class I increment analysis pertain to PSD increment modeling for PM10and NO2or for visibility impacts modeling. In its response to the USDOI‟s comments with the use of turbulence-based dispersion in the Gascoyne 500 Class I analysis, NDDH has also attempted to find EPA approval of its use of non-default turbulence-based dispersion in the Gascoyne 500 Class I modeling by EPA‟s silence omatter in its comments on the draft Gascoyne 500n the permit.18 As stated above, the state and federal PSD regulations require written approval from EPA for modifications to guideline models. In addition, as discussed in further detail below, neither the permit application or NDDH permit analysis for the Gascoyne 500 identified that the Gascoyne 500 Class I area modeling was relying on the non-default turbulence-based dispersion. So, there was not even a request before EPA to use the non-default turbulence-based dispersion in the Gascoyne 500 Class I analysis. In any case, EPA‟s silence on the matter does not equate to written approval by EPA to use a non-regulatory model for the Gascoyne 500 PSD permit.19 Indeed, EPA Region VIII‟s air modeling contact recently sent an email to NDDH‟s modeling contact indicating that NDDH has to obtain written EPA approval for use of turbulence-based coefficients in the Gascoyne 500 modeling.20 NDDH also attempts to justify its use of turbulence-based dispersion in the Gascoyne 500 Class I area analysis by claiming that the EPA‟s Guideline on Air Quality Models provides flexibility to NDDH to modify the models.21 However, the provisions of Appendix W cited by NDDH simply discuss the technical requirements that need to be satisfied to justify the use of alternative models. These provisions do not override the regulatory requirement that modifications to Guideline models must be subject to written approval from EPA. For example, NDDH cites part of the sentence in section A.4.a.(3) of Appendix A to 40 CFR Part 51, Appendix W, as providing authority for NDDH to make changes to CALPUFF but NDDH left off the last part of the sentence which limits such changes to be based on “expert judgment andin consultation with the appropriate reviewing authorities.” added.] NDDH also refers to sections 3.2.2.b. and d. [Emphasis of Appendix W as providing the flexibility for alternative models, but NDDH neglected to cite the first subsection of section 3.2.2., in which the opening sentence states 18 January 7, 2008 letter from NDDH to USDOI at 9. 19 EPA‟s silence on the use of turbulenceFor similar reasons, -based dispersion in the state‟s regional haze modeling does not in any manner satisfy the requirements for written approval for the use of this non-regulatory modification to CALPUFF in the Class I area modeling for the Gascoyne 500 permit. See January 7, 2008 letter from NDDH to USDOI at 10 (NDDH‟s reference to EPA‟s June 12, 2007 letter on the state‟s regional haze modeling protocol). 20 February 11, 2008 Seeemail from Kevin Golden, EPA Region VIII, to Steve Webber, NDDH. Included with this letter as Attachment 8. 21 Januaryfrom NDDH to USDOI at 10 7, 2008 letter under -11 Comment 3.b.
“Determination of acceptability of a model is a Regional Office responsibility.”22 Not only did NDDH not receive proper written approval from EPA for the use of a non-guideline model, the state failed to provide public notice of the use of a non-regulatory model for the Gascoyne 500 pursuant to 40 C.F.R. §52.21(l)(2) and N.D.A.C. 33-15-15-01.2. North Dakota did not provide any statement in its public notice on the draft Gascoyne 500 permit that the modeling relied on a non-regulatory use of the CALPUFF model for the Class I analysis. In addition, the NDDH analysis made available to the public with the draft permit to construct did not indicate that the Gascoyne 500 modeling relied on a non-regulatory use of the CALPUFF model for the Class I analysis. Indeed, while the NDDH analysis stated without further information that some aspects of the Class I modeling used “[s]ome details” of the state‟s modeling protocol, NDDH also stated that “WPI used the current guideline version of CALPUFF. . . .”23The NDDH analysis was issued in May 2007, more than a year after EPA had formally stated that the regulatory version of CALPUFF includes use of Pasquill-Gifford dispersion coefficients (i.e., MDISP = 3). See Attachment 3 to this letter. Thus, none of the documents issued by North Dakota regarding the Gascoyne 500 permit informed the public that the Class I increment and visibility modeling relied on use of non-regulatory settings for CALPUFF. The public had no way of knowing these settings were used in the Gascoyne 500 visibility modeling or in the increment modeling. As the Environmental Appeals Board has found, it is imperative that the public be given adequate notice of the use of a non-guideline model for a PSD permit pursuant to 40 C.F.R. §52.21(l)(2).24 NDDH failed Thusto meet the public notice provision of 40 C.F.R. 52.21(l)(2) as incorporated by reference into North Dakota‟s regulations at N.D.A.C. 33-15-15-01.2. In addition to NDDH‟s failure to meet procedural requirements for the use of nondefault turbulence-based dispersion in the Gascoyne 500 Class I modeling, NDDH has also failed to demonstrate that the use of turbulence-based dispersion is more appropriate than the default P-G dispersion in the modeling of Gascoyne 500‟s impacts on Class I increments for SO2, NO2and PM10as well as in the modeling of Gascoyne 500‟s impacts on AQRVs including visibility. NDDH‟s justification put forth in its 22 40 C.F.R. Part 51, Appendix W, Section 3.2.2.a. EPA adopted the requirements for alternative models in the Guideline for Air Quality Models concurrent with its promulgation of the requirements in 40 C.F.R. §52.21(l), so clearly the provisions in Section 3.2.2 of A ppendix W cited by NDDH in its January 7, 2008 letter to USDOI were meant to define what must be done for the technical justification required to obtain written approval from EPA under 52.21(l)(2). 51 Fed.Reg. 32176 (September 9, 1986). 23 See May 2007 Ai r Quality Effects Analysis and Permit Application of Westmoreland Power, Inc., Electric Utility Steam Generating Unit and Coal Mine, Bowman County, North Dakota, for Air Pollution Control Permit to Construct at 124 -125. 4 2MATTER OF HADSON POWER 14- BUENA VISTA, PSD Appeal IN THE See Nos. 92-3, 92-4, 92 -5, 4 E.A.D. 258, 272 -3 (EAB 1992) at 297. Specifically, the EPA Environmental Appeals Board found that the permitting authority‟s “failure to mention the non-guideline model in the public notice of the draft permit and public hearing deprived the public of a meaningful opportunity to comment on the draft permit.”
periodic SO2increment analysis for use of turbulence-based dispersion does not suffice for the Gascoyne 500 permit Class I increment, visibility and other AQRV modeling. Attachment 5 to this letter includes a report by expert modeler Pat Hanrahan, in which he finds that NDDH has failed to adequately meet the rigorous requirements of the Guidelines on Air Quality Models to justify the use of a nondefault setting for dispersion.25 That report is incorporated herein by reference. Thus, NDDH has no justification for use of the nondefault turbulence-based dispersion in the Class I modeling performed for the Gascoyne 500 permit. NDDH cannot point to any final written determination from EPA that its modifications to the CALPUFF model are acceptable for use in the Class I area visibility impacts modeling or in the Class I increment modeling for the Gascoyne 500 permit. Further, NDDH failed to provide any public notice with the Gascoyne 500 permit that it was relying on a non -guideline model for the Class I area impacts. NDDH also has failed to put forth the necessary technical justifications to support the use of turbulence-based dispersion for the Gascoyne 500 Class I area SO2, NO2and PM10increment modeling or for the visibility/AQRV modeling. Consequently, North Dakota cannot take any further action on the Gascoyne 500 permit until it puts forth adequate justification to EPA, receives written approval from EPA for use of a non-guideline model, and provides notice and justification to the public that it is relying on a non-guideline model to assess Gascoyne 500‟s impacts on Class I areas in North Dakota. 3. NDDH’s Response to the USDOI Comments Regarding the Class I SO2 Increment Analysis Fails to Provide Sufficient Justification for the Use of Illegal and Inappropriate Methods of Assessing Cumulative SO2Increment Consumption in TRNP NDDH has failed to provide sufficient legal or technical justification for the cumulative Class I SO2analysis performed to show that Gascoyne 500 wouldincrement not cause or contribute to an increment violation in TRNP. a) Westmoreland’s Use of a Nonguideline Model for the Gascoyne 500 Class I SO2Increment Analysis Invalidates the Results. First, as discussed in our comment above, NDDH is illegally allowing the use of a non-guideline model for the Gascoyne 500 increment analysis. Use of the non-default turbulence-based dispersion setting in the CALPUFF modeling underestimated SO2 impacts26and also likely underestimated impacts on NO2and PM10concentrations. Thus, neither NDDH or Westmoreland have put forth a legally valid demonstration showing that Gascoyne 500 will not contribute to a violation of any increment in TRNP. 25 “Review of the Class I Visibility Impacts Analysis Conducted for the Proposed Gascoyne 500 Coal-Fired Power Plant to be Located near Gascoyne,North Dakota,” prepared by Pat Hanrahan, February 11, 2008 (Attachment 5 to this letter). 26 Id(In Attachment 5 to this letter). .
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