explained in its response to comments are relevant to its determination in this case. Ms. Owen has not argued in the present case that these reasons stated in general terms in IEPA's response to comments are clearly erroneous or otherwise warrant review.

2) Ms. Owen argues that IEPA improperly eliminated a CO catalyst from consideration as BACT. Ms. Owen cites to testimony submitted in a different PSD permitting case and argues that the BACT analysis submitted by Kendall improperly used certain "generic" cost factors in its analysis of the catalyst's cost-effectiveness. Review of this issue is rejected on the grounds that Ms. Owen has failed to demonstrate that issues concerning the use of generic cost factors in the cost effectiveness analysis for a CO catalyst were raised during the public comment period. Testimony that was not submitted in the administrative record of this proceeding may not be considered on appeal. To rule otherwise would have the practical effect of requiring a permit issuer to search not only the administrative record of the draft permit's public comment period, but also the administrative record of any other pending proceeding that might have some bearing upon the draft permit and to then determine whether any of the comments found in such other proceedings called for a revision of the draft permit's terms. To impose such an obligation on the permit issuer would be unduly onerous, costly and burdensome.

3) Ms. Owen argues that IEPA should have considered the size and magnitude of Kendall's Facility in setting BACT limits for CO. Consideration of this issue is denied because Ms. Owen has not shown that this issue was properly raised below.

4) Ms. Owen argues that Kendall's application should have been processed as a permit extension, not as a new permit. Ms. Owen argues that pursuant to 40 C.F.R. § 52.21(r)(2) an extension of an existing permit may be granted only upon a showing of "justification." Ms. Owen contends that guidance issued by EPA Region IX has interpreted this requirement to mean that the extension application must explain why construction did not commence as scheduled and give assurances that it will begin construction within the extended period, as well as provide a full BACT review and air quality impacts analysis. Review based on this issue is denied on the grounds that Ms. Owen has not shown clear error in IEPA's decision.

The stated purpose of the Region IX guidance cited by Ms. Owen is to "clarify the criteria EPA examines prior to extending the 18-month commencement of construction deadline found in 40 C.F.R. § 52.21(r)(2).” That guidance specifically states that "[t]he applicant, however, may choose to file a project application for consideration as a new permit." It also states that, generally, an extension will not be granted for more than 12 months from the original permit expiration date. Here, Kendall's application requested a permit that would be valid for an 18-month period. Where, as here, Kendall requested an extension for the same length of time that would be afforded a new permit under section 52.21(r)(2), the Board finds no clear error in IEPA's decision to treat that application as one requesting a new permit. Moreover, Kendall was required to meet all of the standards presently applicable to the issuance of a PSD permit. Requiring a full review of an application as one for a new permit assures that "advances in air pollution control technology and any reduction in the available PSD increment will be taken into account." In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 160-61 (EAB 1999). Ms. Owen has not demonstrated any error in IEPA's determination that the requirements for issuing a PSD permit have been satisfied.

Before Environmental Appeals Judges Scott C. Fulton, Ronald L. McCallum and Kathie A. Stein.

Opinion of the Board by Judge McCallum:

Before the Board is a petition seeking review of certain conditions of a prevention of significant deterioration ("PSD") permit decision, Permit No. 093801AAN (the "Permit"), issued by the Illinois Environmental Protection Agency ("IEPA").' The Permit was issued to Kendall New Century Development, LLC ("Kendall") for the construction of a natural-gas fired, electric generation facility (the "Facility") located near Plano in Kendall County, Illinois. The petition for review ("Petition") was filed by Verena Owen ("Ms. Owen").2

For the reasons explained below, we deny review.

I. BACKGROUND

A. Statutory and Regulatory Background

Congress enacted the PSD provisions of the Clean Air Act ("CAA") in 1977 for the purpose of, among other things, “insur[ing] that economic growth will occur in a manner consistent with the preservation of existing clean air resources." CAA § 160(3), 42 U.S.C. § 7470(3). To that end, parties must obtain preconstruction approval in the form of a PSD permit to build new major stationary sources, or to make major modifications to existing sources, in so-called "attainment" or "unclassifiable" areas. CAA §§ 107, 160-169B, 42 U.S.C. §§ 7407, 7470-7492. The PSD permitting program regulates air pollution in "attainment" areas, where air quality meets or is cleaner than the national ambient air quality standards ("NAAQS"), as well as areas that cannot be classified as "attainment" or "non-attainment" ("unclassifiable" areas). CAA §§ 160-169B, 42 U.S.C.

IEPA administers the PSD program in Illinois pursuant to a delegation of authority from U.S. Environmental Protection Agency Region V (the “Region"). See 46 Fed. Reg. 9580 (Jan. 29, 1981); In re Zion Energy, LLC, 9 E.A.D. 701 n. 1 (EAB 2001). Because IEPA acts as EPA's delegate in implementing the federal PSD program within the State of Illinois, the Permit is considered an EPA-issued permit for purposes of federal law, and is subject to review by the Board pursuant to 40 C.F.R. § 124.19. See In re Kawaihae Cogeneration Project, 7 E.A.D. 107, 109 n.1 (EAB 1997); In re Commonwealth Chesapeake Corp., 6 E.A.D. 764, 765 n.1 (EAB 1997); In re W. Suburban Recycling & Energy Ctr., L.P., 6 E.A.D. 692, 695 n.4 (EAB 1996).

2 In order to have standing to file a petition for review, the petition must show that the petitioner submitted comments on the draft permit during the public comment period or participated in the public hearing. 40 C.F.R. § 124.19(a)(2002). Ms. Owen submitted comments during the public comment period and participated in the public hearing. Absent such participation, a petitioner is restricted to raising matters that relate to changes from the draft to the final permit decision. Id.

§§ 7470-7492; see In re EcoEléctrica, L.P., 7 E.A.D. 56, 59 (EAB 1997); In re Commonwealth Chesapeake Corp., 6 E.A.D. 764, 766-67 (EAB 1997).

The NAAQS are "maximum concentration 'ceilings" for particular pollutants, "measured in terms of the total concentration of a pollutant in the atmosphere." U.S. EPA Office of Air Quality Planning, Draft New Source Review Workshop Manual (“NSR Manual”)3 at C.3. The PSD permitting requirements are pollutant-specific, which means that a facility may emit many air pollutants, but only one or a few may be subject to PSD review depending upon a number of factors including the amount of emissions of each pollutant by the facility. NSR Manual at 4. NAAQS have been set for six criteria pollutants: sulfur oxides, particulate matter,5 nitrogen dioxide (“NO2")," carbon monoxide ("CO"), ozone (“O3”), and lead. See 40 C.F.R. §§ 50.4-50.12 (2002). Kendall County, Illinois, is located in an area designated attainment for meeting the NAAQS for SO2 and either attainment or unclassifiable for particulate matter, CO, and NO2. 40 C.F.R. § 81.314 (2002). Oswego township in Kendall County is not in attainment of the NAAQS for O3; however, all other parts of Kendall County are in attainment or are unclassifiable. Id.

The PSD regulations require that new major stationary sources, or major modifications of existing major sources, employ the "best available control technology," or BACT, to control emissions of regulated pollutants in attainment or unclassifiable areas. 42 U.S.C. § 7475(a)(4); 40 C.F.R. § 52.21(j)(2002). Ms.

3 The NSR Manual has been used as a guidance document in conjunction with new source review workshops and training, and as a guide for state and federal permitting officials with respect to PSD requirements and policy. Although it is not a binding Agency regulation, the NSR Manual has been looked to by this Board as a statement of the Agency's thinking on certain PSD issues. See, e.g., In re RockGen Energy Ctr., 8 E.A.D. 536, 542 n.10 (EAB 1999), In re Knauf Fiber Glass, GmbH, 8 E.A.D. 121, 129 n.13 (EAB 1999).

4 Sulfur oxides are to be measured in the air as SO2. 40 C.F.R. § 50.4(c)(2002).

5 For purposes of determining attainment of the NAAQS, particulate matter is measured in the ambient air as particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers, referred to as PM10. 40 C.F.R. § 50.6(c)(2002).

6 A facility's compliance with respect to nitrogen dioxide is measured in terms of emissions of any nitrogen oxides (NOx). 40 C.F.R. § 52.21(b)(23)(2002); In re Haw. Elec. Light Co., 8 E.A.D. 66, 69 n.4 (EAB 1998).

7 A facility's compliance with respect to ozone is measured in terms of emissions of volatile organic compounds (“VOCs”). 40 C.F.R. § 52.21(b)(23)(2002).

The PSD regulations also require the permit issuer to review new major stationary sources prior to construction to ensure that emissions from such facilities will not cause or contribute to an exceedance of either the NAAQS or the applicable PSD ambient air quality "increments." 40 C.F.R. §§ 52.21-.34. The performance of an ambient air quality and source impact analysis, pursuant to the regulatory requirements of 40 C.F.R. § 52.21(k), (1) and (m), as part of the PSD permit review process, Continued

Owen's petition for review in the present matter challenges IEPA's determination of BACT for CO at Kendall's proposed Facility. Ms. Owen has not raised any issues concerning IEPA's BACT determination for other regulated pollutants.

B. Factual and Procedural Background

The Permit would authorize Kendall to construct the Facility, consisting of eight (8) simple-cycle, natural gas-fired, GE Frame 7EA combustion turbines. Each of the turbines will be equipped with low NOx combustors and will have nominal electrical generating capacity of 83 Megawatt ("MW"). The total nominal generating capacity of the Facility will be 664 MW. Other emission units at the Facility will include two (2) natural gas-fired fuel heaters and an emergency fire-water pump powered by a diesel-fired engine.

IEPA previously issued a PSD permit for the Facility on January 14, 2000. However, Kendall did not begin construction of the Facility within the 18-month period allowed by the PSD regulations. Shortly before that period expired, on June 28, 2001, Kendall submitted an application for extension of the PSD permit for an additional 18-month period. See Extension Request for PSD Permit (June 2001). IEPA, however, required Kendall to submit a new BACT demonstration and air quality impact analysis, and it reviewed the application as one for a new PSD permit. IEPA Responsiveness Summary for Public Questions and Comments on the Construction Permit Application from Kendall New Century Development at 14 ("Responsiveness Summary").

The proposed Facility is a new major source of air emissions. Responsiveness Summary at 2. Kendall stated in its application that the Facility has the potential to emit CO and NOx in amounts exceeding 250 tons per year. Accordingly, the Facility will be a "major stationary source" of regulated pollutant emissions within the meaning of the PSD regulations.10 In addition, Kendall stated in its application that the Facility will emit PM and SO2 in amounts qualifying as "significant" under 40 C.F.R. § 52.21(b)(23)(i). Id. As such, Kendall is required to

(continued)

is the central means for preconstruction determination of whether the NAAQS or PSD increment will be exceeded. See Haw. Elec. Light, 8 E.A.D. at 73. In the present case, Ms. Owen has not alleged any error in IEPA's ambient air quality and source impact analysis.

9 Unless an extension of time is granted, the regulations provide that a PSD permit becomes invalid if construction is not commenced within 18 months after receipt of approval. 40 C.F.R. § 52.21(r)(2).

10 See 40 C.F.R. § 52.21(b)(1)(i)(2002) (major stationary source is defined as including "any stationary source which emits, or has the potential to emit, 250 tons per year or more of any air pollutant subject to regulation under the Act.").

install the best available control technology, or BACT, for controlling emissions of PM and SO2, as well as CO and NOx.

IEPA prepared a draft permit and provided public notice and an opportunity to comment on the draft permit during a public comment period that ended on July 12, 2002. In addition, IEPA held a public hearing in Yorkville, Illinois, on June 12, 2002. Ms. Owen submitted written comments during the public comment period and participated in the public hearing. In her comments, Ms. Owen raised concerns regarding the CO BACT provisions of the Permit and regarding IEPA's decision to review the application as one for a new PSD permit, rather than as an extension of the existing permit. On November 27, 2002, IEPA issued the Permit and shortly thereafter issued its Responsiveness Summary providing its response to comments received during the public comment period.

The Permit would require Kendall to equip, operate, and maintain low NOx combustors for each of the eight turbines. Permit at 2, condition 2a. The Permit also would establish an emissions limit for NOx at 9 parts per million volume dry (“ppmvd”) at 15% O2 on an hourly average based on a 3-hour block average. Id. at 4, condition 2c.i. As for CO, the subject of Ms. Owen's comments, the Permit would set the emissions limit at 25 ppmvd at 15% O2 on an hourly average based on a 3-hour block average. Id. at 4, condition 2c.ii. The Permit also would require Kendall to use good combustion practices to maintain and operate the turbines in order to control emissions of CO and PM. Id. at 4, condition 2d. IEPA determined that these conditions "represent the application of the Best Available Control Technology" for Kendall's proposed Facility. Id. at 5, condition 4b.

C. Issues Raised in the Petition

Ms. Owen has raised four issues in her Petition. Ms. Owen's first three issues relate to IEPA's determination of BACT for controlling CO emissions. Ms. Owen argues (1) that the CO BACT limit of 25 ppmvd is too high (she contends it should be as low as 7.4 ppmvd); (2) that IEPA improperly eliminated use of a catalyst as BACT for CO; and (3) that the CO BACT limit should take into account the size and magnitude of this Facility. Ms. Owen's final issue raised in her Petition is that IEPA should have processed this permit as a request for an extension of Kendall's previous PSD permit, rather than as a new permit application. IEPA contends that each of Petitioner's arguments should be rejected on the grounds that they allegedly (1) were not adequately raised during the public comment period; (2) are unsubstantiated and lack specificity; and (3) do not show error in IEPA's permitting decision when taking into account the deference that the Board affords to permitting authorities on matters of technical judgment.

For the following reasons, we deny Ms. Owen's Petition for review of IEPA's permitting decision.