[Federal Register Volume 66, Number 238 (Tuesday, December 11, 2001)]
[Notices]
[Pages 64041-64042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30593]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7115-4]


Notice of Prevention of Significant Deterioration (PSD) Final 
Determination for DPL Energy Montpelier Electric Generating Station, 
Wells County, IN

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final action.

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SUMMARY: This notice announces that on March 13, 2001, the 
Environmental Appeals Board (EAB) of the EPA dismissed a petition for 
review of a permit issued for DPL Energy Montpelier Electric Generating 
Station in Wells County, Indiana by the Indiana Department of 
Environmental Management (IDEM) pursuant to the State of Indiana's 
approved minor source New Source Review (NSR) permit program.

DATES: The effective date for the EAB's decision is March 13, 2001. 
Judicial review of this permit decision, to the extent it is available 
pursuant to section 307(b)(1) of the Clean Air Act, may be sought by 
filing a petition for review in the United States Court of Appeals for 
the Seventh Circuit within 60 days of December 11, 2001.

ADDRESSES: The documents relevant to the above action are available for 
public inspection during normal business hours at the following 
address: EPA, Region 5, 77 West Jackson Boulevard (AR-18J), Chicago, 
Illinois 60604. To arrange viewing of these documents, call Julie 
Capasso at (312) 886-1426.

FOR FURTHER INFORMATION CONTACT: Julie Capasso, United States 
Environmental Protection Agency, Region 5, 77 W. Jackson Boulevard (AR-
18J), Chicago, Illinois 60604, telephone (312) 886-1426. Anyone who 
wishes to review the EAB decision can obtain it at http://www.epa.gov/eab/disk11/montpelier.pdf.

SUPPLEMENTARY INFORMATION: This supplemental information is organized 
as follows:

    A. What Action is EPA Taking?
    B. What is the Background Information?
    C. What did EPA Determine?

A. What Action Is EPA Taking?

    We are notifying the public of a final decision by EPA's EAB on a 
permit issued by IDEM pursuant to the State of Indiana's approved minor 
source (NSR) permit program.

[[Page 64042]]

B. What Is the Background Information?

    On December 29, 2000, IDEM issued a ``New Source Construction 
Permit and Minor Source Operation Permit'' which authorizes the 
construction and operation of [8] Twin Pac combustion turbine units, 
which consist of 16 simple cycle combustion turbines and [8] electric 
generators. The Permit restricts allowable emissions of any regulated 
pollutant to no more than 249 tons per year and was issued pursuant to 
the state's minor source new source review (``NSR'') permit program. In 
issuing the Permit, IDEM did not in any way invoke its permit-issuing 
authority pursuant to the prevention of significant deterioration 
(``PSD'') program that it administers in the state as a federal 
delegatee.
    On January 23, 2001, Stephen A. Loeschner filed a petition 
contending that IDEM should have issued a federal PSD permit to DPL 
Energy rather than a minor source NSR permit because, according to 
Petitioner, the proposed DPL Energy facility, which Petitioner 
characterizes as a fossil fuel-fired steam electric plant and which has 
the potential to emit more than 100 tons per year of any air pollutant, 
is a major emitting facility and, thus, requires a PSD permit.
    On February 14, 2001, IDEM filed a Motion for Summary Disposition 
with the EAB, in which IDEM asserted that the EAB lacked jurisdiction 
to review the DPL Energy minor source permit. DPL Energy also filed a 
motion seeking summary disposition on the same grounds. The Office of 
General Counsel and Office of Regional Counsel in Region 5 filed an 
amicus curiae brief maintaining that the EAB lacked jurisdiction in 
this matter.

C. What Did the EAB Determine?

    On March 13, 2001, the EAB denied the petition for review for lack 
of jurisdiction. The EAB explained that none of the sources of the 
Board's authority to review permit determinations confers jurisdiction 
on the Board for the sole purpose of reviewing permits issued under an 
approved minor source NSR program of any state. See In re Carlton, 
Inc., North Shore Power Plant, PSD Appeal 00-9 [ADMIN. MAT. 41236] 
(EAB, Feb. 28, 2001), 9 E.A.D. It therefore follows that the Board does 
not have jurisdiction to review the minor source permit issued by IDEM 
to DPL Energy. Also, since Carlton further instructs that the Board's 
jurisdiction to review PSD permits ``is limited to federal PSD permits 
that are actually issued,'' it necessarily follows that a state 
decision not to issue a PSD permit (in contrast to a state decision to 
deny a PSD permit under a federal program) is not a reviewable decision 
by the Board.

    Dated: November 28, 2001.
Bertram C. Frey,
Acting Regional Administrator, Region 5.
[FR Doc. 01-30593 Filed 12-10-01; 8:45 am]
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