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Federal Register / Vol. 70, No.

85 / Wednesday, May 4, 2005 / Notices 23155

startup, malfunction and breakdown explain the reasons for denying Chicago combined-cycle facility approximately
that violates EPA policy; and (5) contain Legal Clinic’s remaining claims. twelve to eighteen months after startup
language that violates EPA policy Dated: April 19, 2005. of the simple-cycle facility. Indeck
requiring a permit to be practically Norman Niedergang,
proposed to site the new facility
enforceable. (Indeck-Niles Energy Center) in the
Acting Regional Administrator, Region 5.
On March 25, 2005, the Administrator southwestern corner of the State of
[FR Doc. 05–8869 Filed 5–3–05; 8:45 am] Michigan, in Cass County, northeast of
issued orders partially granting and
partially denying the petitions. The
BILLING CODE 6560–50–P the City of Niles, Michigan, and not far
orders explain the reasons behind EPA’s from South Bend, Indiana. That portion
conclusion that the IEPA must reopen of the State was designated as
ENVIRONMENTAL PROTECTION attainment or unclassifiable for carbon
the permits to: (1) Address Petitioner’s AGENCY
significant comments; (2) include monoxide (CO), nitrogen dioxide (NO2),
periodic monitoring in compliance with [MI 86–01; FRL–7907–9] sulfur dioxide (SO2), ozone (measured
40 CFR § 70.6(a)(3)(i)(B); (3) remove the as volatile organic compounds (VOCs)),
note stating that compliance with the Notice of Final Determination for the and particulate matter (PM) at the time
carbon monoxide limit is inherent; (4) Final Determination for the Indeck- of permit issuance.
explain in the statement of basis how it Niles Energy Center, L.L.C. located in In the first phase of the project,
determined in advance that the Niles, MI Indeck proposed to install four natural
permittee had met the requirements of gas-fired combustion turbines for
AGENCY: Environmental Protection operation in simple-cycle mode. In the
the Illinois State Implementation Plan Agency (EPA). second phase, Indeck proposed to
(SIP) or to specify in the permit that ACTION: Notice of final action. convert the four simple-cycle turbines
continued operation during malfunction
into combined-cycle units through the
or breakdown will be authorized on a SUMMARY: This notice announces that on
addition of heat recovery steam
case-by-case basis if the source meets September 30, 2004, the Environmental
generators and natural gas-fired duct
the SIP criteria; (5) remove language Appeals Board (EAB or Board) of the burners to increase steam output. The
which is not required by the underlying United States EPA denied a petition for conversion would take place within
applicable requirement or explain in the review of a Federal Prevention of twelve to eighteen months after
permit or statement of basis how this Significant Deterioration (PSD) permit operation of the simple-cycle turbines
language implements the meaning and issued to Indeck-Niles L.L.C. (Indeck) by commences. The steam produced would
intent of the underlying applicable the Michigan Department of be piped to two steam condensing
requirement; (6) remove ‘‘established Environmental Quality (MDEQ). turbines to produce additional power. In
startup procedures,’’ include the startup DATES: The effective date for the EAB’s this configuration, the proposed facility
procedures in the permit, or include decision is September 30, 2004. has the potential to emit NOX, CO,
minimum elements of the startup Pursuant to Section 307(b)(1) of the VOCs, and PM in quantities sufficient to
procedures that would ‘‘affirmatively Clean Air Act, 42 U.S.C. 7607(b)(1), trigger the requirement for emissions
demonstrate that all reasonable efforts judicial review of this permit decision, limitations reflecting Best Available
have been made to minimize startup to the extent it is available, may be Control Technology (BACT).
emissions, duration of individual sought by filing a petition for review in Accordingly, as part of the permit
startups and frequency of startups;’’ (7) the United States Court of Appeals for application process, Indeck conducted
require the owner or operator of the the Sixth Circuit within 60 days of May BACT analyses for the relevant
sources to report to the agency 4, 2005. pollutants and proposed BACT
‘‘immediately’’ or explain how the ADDRESSES: The documents relevant to emissions limits for the pollutants of
phrase ‘‘as soon as possible’’ meets the the above action are available for public concern.
requirements of the SIP; (8) remove inspection during normal business In December 2001, MDEQ approved
‘‘reasonably’’ and ‘‘reasonable’’ from hours at the following address: Indeck’s analyses and issued a permit to
relevant permit terms or define or Environmental Protection Agency, the company for the proposed facility
provide criteria to determine Region 5, 77 West Jackson Boulevard (New Source Review Permit to Install
‘‘reasonably’’ and ‘‘reasonable’’ that (AR–18J), Chicago, Illinois 60604. To No. 364–00). However, a number of
meet the requirements of the SIP; (9) arrange viewing of these documents, individuals timely petitioned the Board
remove the term ‘‘reasonable’’ from the call Laura L. David at (312) 886–0661. for review of that permit, which
relevant permit conditions in prevented the permit from going into
FOR FURTHER INFORMATION CONTACT:
accordance with the language in Part 70, effect at that time. On March 11, 2002,
Section 504 of the Clean Air Act or Laura L. David, Environmental
the Board issued an order denying the
Section 39.5 of the Environmental Protection Agency, Region 5, 77 W.
individuals’ petition for review and the
Protection Act; (10) remove the ability Jackson Boulevard (AR–18J), Chicago,
permit therefore became final on that
to waive the testing requirements or Illinois 60604. Anyone who wishes to
date. Notably, however, Indeck failed to
explain how such a waiver would meet review the EAB decision can obtain it at
commence construction of its new
the requirements of part 70; (11) define http://www.epa.gov/eab/orders/
facility within eighteen months of
‘‘extraordinary circumstances’’ in a indeck2004.pdf.
issuance of the final PSD permit. Under
manner consistent with the SUPPLEMENTARY INFORMATION: In the the State of Michigan’s air pollution
requirements of the SIP or remove the Board’s September 30, 2004 Order control regulations (which are based on
language from the permit; and (12) Denying Review, the Board made the the Federal PSD rules), such a lack of
remove ‘‘summary of compliance’’ from following findings. On November 2, action within the prescribed time frame
the permit or clarify the term such that 2000, Indeck-Niles, L.L.C. applied to renders the permit void (Mich. Admin.
the reader understands what a MDEQ for permission to construct a Code r. 336.1201(4)).
‘‘summary of compliance’’ must contain new 656–MW simple-cycle natural gas- A year and a half later, in June 2003,
and how the summary relates to the fired electrical generating facility, to be Indeck requested that MDEQ reissue the
control measures. The orders also transformed into a 1,076–MW PSD permit for the proposed Indeck-

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23156 Federal Register / Vol. 70, No. 85 / Wednesday, May 4, 2005 / Notices

Niles Energy Center, largely as Indeck mustprepare a plan (‘‘emission short-term concentration limits in those
originally conceived. Indeck did not minimization plan’’) to minimize air periods. In addition, MDEQ stated that,
revise or supplement its initial BACT pollutant emissions during startup and unlike the situation in Tallmadge,
analyses, performed in November 2000, shutdown periods, as well as Indeck’s permit does not ‘‘rely on a
but instead relied on the information malfunction periods, and obtain startup, shutdown and malfunction plan
contained therein as the best available MDEQ’s approval of this plan prior to to establish permitting requirements in
information for the permit review. One initiating operation of the combustion lieu of emission limits that satisfy
difference between the original permit turbines and duct burners. The BACT.’’ In MDEQ’s view, the permit
and the present one relates to the NOX Petitioner pointed out that, in his required Indeck to submit a plan to
control technology. In its original permit comments on the draft version of the minimize emissions during these
application, Indeck had proposed to permit, he had asked MDEQ to provide periods. MDEQ, however, did not
equip each of the four natural gas-fired for public scrutiny of the emissions
combustion turbines with dry low-NOX consider that plan a substitute for the
minimization plan and to follow all the
burners and a selective catalytic BACT limits contained in the permit.
directives given to MDEQ by the EAB in
reduction system to achieve a NOX Since Indeck’s PSD permit does not
a previous decision regarding Tallmadge
BACT emissions limit, during combined Energy Center, Order Denying Review in completely exempt startup/shutdown
cycle operations, of 3.5 parts per million Part and Remanding in Part (PSD from BACT limitations, the Board
dry volume at 15% oxygen averaged Appeal No. 02–12, EAB May 21, 2003), declined the basis for invoking
over a twenty-four hour rolling time regarding a similar emissions Tallmadge Generating Station and
period. Those proposals became part of minimization plan. The Petitioner Rockgen Energy Center (an electric
the original permit. In the new permit, argued that MDEQ ignored the power generating case out of the State
those air pollution control measures are Tallmadge requirements and, as a of Wisconsin and cited as precedent in
still included; however, Indeck has also consequence, the plan called for in Tallmadge). The Board remanded the
agreed to install a catalytic oxidation Indeck’s PSD permit lacks the requisite PSD permits in both of those cases
system on each of the four combustion degree of specificity to allow for because the permits contained blanket
turbine/dry low-NOX burner pairs, meaningful comment by Petitioner and exemptions from BACT emissions limits
which is a more stringent technology other members of the public. during startup and shutdown periods,
option than previously proposed, in contrary to the directives of the Clean
At the request of the Board, MDEQ
order to achieve the BACT limits for CO Air Act (CAA), as interpreted by EPA
submitted a response to the merits of the
and VOCs emissions. policymakers. In the Indeck case,
MDEQ subsequently reviewed and petition for review on June 25, 2004. In
response, MDEQ distinguished the however, the PSD permit explicitly
approved Indeck’s BACT analyses.
Accordingly, MDEQ issued a draft PSD factual circumstances of this case from establishes BACT emissions limits for
permit to Indeck in January 2004, those in Tallmadge Energy Center. First, NOX, CO, VOCs, and particulate matter,
containing proposed terms and MDEQ noted that the Tallmadge permit on a tons per twelve-month rolling time
conditions to regulate the proposed explicitly exempted that facility from period basis (as determined at the end
power plant. MDEQ also published a complying with all BACT emission of each calendar month), including all
notice inviting public comment on the limits during startup, shutdown, and periods of startup, shutdown, and
draft permit and establishing a 30 day malfunction periods and instead made malfunction. The permit also has a
comment period. On February 25, 2004, the facility’s operations contingent on provision limiting total startup/
MDEQ held a public hearing on the the permittee’s submittal of a plan shutdown event time to 2,000 hours per
draft permit at the Niles High School describing how it would minimize year (500 hours per individual turbine)
Auditorium in Niles, Michigan. The emissions during those periods. and defining ‘‘startup’’ as ‘‘the period of
Department received approximately Indeck’s permit, MDEQ noted, does not time from initiation of combustion firing
sixty written and twelve oral comments contain such explicit exemption from
until the unit reaches steady state
on the draft permit from interested all BACT limits. To the contrary, MDEQ
operation (loads greater than 90
parties, including comments from Mr. observed that Indeck’s permit
incorporates annual BACT emission percent).’’ In these circumstances, EAB
Douglas Meeusen (‘‘Petitioner’’). After determined that it would be
reviewing the public comments on the limitations (expressed in terms of tons
per year) that must be met at all times, inappropriate to construe Tallmadge
draft permit, MDEQ issued a final and Rockgen as establishing bright-line
permit (Permit to Install No. 364–00A) including during startup, shutdown,
and malfunction periods, and it also rules for every case in which the PSD
on April 21, 2004, for Indeck’s
construction of the Niles Energy Center, contains restrictions on the amount of permit contains a startup/shutdown
along with a document responding to time the turbines can be in startup/ emissions minimization plan.
the comments on the draft permit. shutdown mode and sets forth a On September 30, 2004, for the
On May 20, 2004, Petitioner filed PSD minimum load requirement of ninety foregoing reasons, the Board denied the
Appeal No. 04–01 with the Board. In his percent that defines when startup is petition for review of PSD Permit No.
appeal, Petitioner raised concerns about completed. Second, MDEQ responded to 364–00A.
the startup and shutdown frequency of any latent concerns that might exist
about the Indeck permit’s exclusions of Dated: April 22, 2005.
the proposed facility’s combustion
turbines. Under Indeck’s PSD permit, the facility from short-term (i.e., hourly, Norman Niedergang,
each turbine is allowed to operate in daily) BACT concentration limits during Acting Regional Administrator, Region 5.
startup/shutdown mode a maximum of startup and shutdown periods. [FR Doc. 05–8874 Filed 5–3–05; 8:45 am]
500 hours per twelve-month rolling time Specifically, MDEQ explained that due BILLING CODE 6560–50–P
period, as determined at the end of each to the nature of operations during
calendar month, or a total of 2,000 hours startup and shutdown, involving lower
for the four turbines annually. The and inconsistent combustion
Petitioner challenged special condition temperatures, the proposed facility will
5.8 of the permit which provides that not be capable of always meeting the

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