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after the sugar is squeezed out). It will provide additional electricity to the Mill, as well as providing electricity which HC&S is proposing to sell to Maui Electric Company to meet the island's demands.

Mr. Williamson's petition raises six issues. At the request of this Board, the State of Hawaii Department of Health submitted a copy of the administrative record for the permit and a response to the petition. The record shows that the issues raised in this appeal had previously been raised by Mr. Williamson in his comments on the draft permit, and thus were preserved for review under 40 CFR § 124.19.1

Under the rules that govern this proceeding, a PSD permit ordinarily will not be reviewed unless it is based on a clearly erroneous finding of fact or conclusion of law, or involves an important matter of policy or exercise of discretion that warrants review. See 40 CFR § 124.19; 45 Fed. Reg. 33412 (May 19, 1980). The preamble to the Federal Register notice in which Section 124.19 was promulgated states that "this power of review should be only sparingly exercised," and that "most permit conditions should be finally determined at the Regional level ***." Id. The burden of demonstrating that review is warranted is on the petitioner. For the reasons set forth below, we conclude that Petitioner has failed to show that review of the permit is warranted under 40 CFR § 124.19, and therefore review is denied.

Ash Disposal: The first issue raised by Petitioner relates to disposal of the fly ash (and bottom ash) from the operation of the boiler. Petitioner expresses the view that HC&S has no definite plans for disposal of the ash and doesn't even know if it is hazardous. Petitioner believes the ash should already have been tested and the disposal problem investigated since HC&S has been using small quantities of the same coal for some time.

The State, in its response to the petition, identifies several options HC&S has explored for ash disposal including selling it to local cement manufacturers for use as a component of cement, using it as a soil amendment in the sugar cane fields, or using it as a surfacing material for cane haul roads. All these potential uses presuppose a determination that the ash is non-hazardous. If it proves to be hazardous, the ash will be disposed of in a manner

140 CFR § 124.19 provides for appeal of PSD permits by persons who filed comments on the draft permit or participated in the public hearing. Any person who failed to file comments or failed to participate in the public hearing may petition for review only to the extent of changes from the draft to final decision.

consistent with all applicable Federal and State laws.2 Based on the testing of ash resulting from coal combustion at an existing boiler at the HC&S facility, HC&S does not expect the ash to be hazardous. However, a disposal method cannot be finally identified until the ash actually produced by the new boiler is tested once it comes on line.

The Ambient Air Quality Impact Report which accompanied the final permit discusses the anticipated impacts of ash handling in Section IV.F. at page 6. There is no discussion in that Report of plans for the ultimate disposition of the ash. However, it is apparent from the record that the Permittee has given considerable thought to the ash disposal issue although it is not yet in a position to make a final decision. While consideration of the nature of the fly ash could be relevant to a consideration of collateral environmental effects as part of an analysis of best available control technology (BACT), Petitioner's concerns here are speculative. There is nothing in the record to suggest that the BACT determination for any pollutant regulated under the Clean Air Act would be affected by the absence of a definitive plan for the disposal of the fly ash.5 Petitioner has not identified any violation of PSD regulations in the lack of greater specificity on plans for disposal of the fly ash. Thus, Petitioner has not carried his burden of identifying either a clear factual or legal error or an important policy consideration or exercise of discretion that should be reviewed. Review of this issue is therefore denied.

2 Although not discussed in the State's response or in the comments of HC&S in the administrative record, we note that 40 CFR § 261.4(b)(4) excludes fly ash waste and bottom ash waste resulting from the combustion of fossil fuels from the definition of solid waste, and thus from Federal regulation as a hazardous waste.

3 For example, Sierra Research, on behalf of the Permittee, sent a letter to Mr. Williamson on September 9, 1991, responding to questions he raised at the public hearing. Enclosed with this letter is a Summary of Comments and Responses which discusses alternatives for fly ash disposal on pages 3-4.

440 CFR § 52.21(j)(3) requires a new major stationary source to apply best available control technology for each pollutant subject to regulation that it would have the potential to emit in significant amounts. Best available control technology is defined at 40 CFR § 52.21(b)(12).

5"While collateral environmental impacts are relevant to the BACT determination, their relevance is generally couched in terms of discussing which available technology, among several, produces less adverse collateral effects, and, if it does, whether that justifies its utilization even if the technology is otherwise less stringent." In re Old Dominion Electric Cooperative, PSD Appeal 91-39 at p. 23 (January 29, 1992). See also North County Resource Recovery Associates, PSD Appeal No. 85–2 (Remand, June 3, 1986) (environmental impact of pollutants not regulated under the Clean Air Act may necessitate a more stringent emission limit for regulated pollutants undergoing BACT review).

Coal Stockpiles: Petitioner questions what the size of the stockpile will be, how HC&S will prevent fugitive dust due to winds, and how HC&S will get rid of coal dust. The State, in its response to the petition, describes the stockpiles and indicates that it does not expect significant air pollution problems from fugitive dust because the coal will be washed and has an extremely low silt content (4.23%). The State also cites assurances from HC&S that fugitive dust will not produce visible emissions beyond the property boundary.

The permit addresses fugitive dust controls in Section IX.D.6. This provision requires:

Fugitive dust controls, including the use of enclo-
sures and wet suppression to prevent particulate
matter from becoming airborne to the extent prac-
tical, during all material handling operations of coal,
sorbent, and ash. All coal conveyors shall be enclosed
and the coal pulverizer shall be vented to the coal
storage bin to control fugitive emissions. Hawaiian
Commercial & Sugar Company shall design and con-
struct the boiler ash handling and disposal system
in a manner that will minimize particulate emissions
from ash handling and disposal. Ash conveyors shall
be pneumatic or shall handle wet ash and all convey-
ors and transfer points shall be covered or sealed.
In no case shall Hawaiian Commercial & Sugar Com-
pany cause or permit the discharge of visible emis-
sions of fugitive dust beyond the permittee's property
boundary.

Relative to disposal of coal dust, the State's response to the petition indicates that "the disposal of the coal dust will be minimal" and will be conducted in accordance with all applicable federal and state regulations. Response at 2.

The Ambient Air Quality Impact Report projects negligible fugitive particulate emissions associated with fuel handling due to the nature of the coal to be used and the fact that all coal conveyers will be enclosed. Petitioner has not pointed to any data or other evidence in the record to challenge this conclusion. In addition, the permit limitation on visible emissions of fugitive dust beyond the property line provides an enforceable mechanism to deal with any problem should one arise. Petitioner has not carried his burden of identifying either a clear factual or legal error or an important policy

consideration or exercise of discretion that should be reviewed and review is accordingly denied.

Petitioner also indicates that he is adamantly opposed to any additional coal fired boilers on Maui, suggesting that HC&S should instead install a combined cycle facility fueled with low sulfur distillate or residual oil and equipped with a selective catalytic reduction unit for NOx control.6 The State, in its response to the petition, indicates that it does not have the authority to define the boiler type to be used.7 Instead, it evaluated the anticipated impacts of the facility with the type of boiler proposed and found them to be acceptable under the PSD regulations.

EPA's PSD permit conditions regulations do not mandate that the permitting authority redefine the source in order to reduce emissions. The U.S. Environmental Protection Agency's Air Quality Management Division discussed the application of this principle in a draft New Source Review Workshop Manual issued in October 1990. This document was developed for use in conjunction with new source review workshops and training, and to guide permitting officials. As such, it has been widely circulated and represents the Office of Air Program's current thinking in this regard.

On page B. 13 of that Manual, it provides:

Historically, EPA has not considered the BACT re-
quirement as a means to redefine the design of the
source when considering available control alter-
natives. For example, applicants proposing to con-

"The State did evaluate the relative merits of selective catalytic reduction (SCR) and selective non-catalytic reduction (SNCR) in the context of its best available control technology analysis for NO, and found selective non-catalytic reduction to be preferable. It cited the lack of experience with SCR systems on CFB boilers, significant problems with plugging and poisoning of the catalyst by fly ash in crushed coalfired boilers, increased costs, and other considerations in rejecting SCR. Ambient Air Quality Impact Report at pp. 19-20. Petitioner has not shown that the State's BACT analysis is deficient, and thus has not met his burden under 40 CFR § 124.19.

7The State indicates that it “does not have authority to require facilities to use a specific equipment, fuel or air pollution control device." Response at p. 2. However, we note that the definition of BACT includes consideration of both clean fuels and use of air pollution control devices.

8"Although imposition of the conditions may, among other things, have a profound effect on the viability of the proposed facility as conceived by the applicant, the conditions themselves are not intended to redefine the source ***." In re Pennsauken County, New Jersey Resource Recovery Facility, PSD Appeal No. 88-8 at p. 11 (November 10, 1988).

struct a coal-fired electric generator, have not been
required by EPA as part of a BACT analysis to con-
sider building a natural gas-fired electric turbine al-
though the turbine may be inherently less polluting
per unit product (in this case electricity). However,
this is an aspect of the PSD permitting process in
which states have the discretion to engage in a
broader analysis if they so desire. Thus, a gas tur-
bine normally would not be included in the list of
control alternatives for a coal-fired boiler.9

Petitioner's preference as to the type of boiler and fuel to be used in this instance would in effect redefine the source. The cited draft guidance makes clear that the permitting authority is entitled to wide latitude in how broad a BACT analysis it wishes to conduct in this regard. Petitioner has provided no good reason for curtailing this discretion here nor has he shown that the State abused this discretion. Thus, review of this issue is also denied. 10

Fuel Oil: Petitioner states that the Hawaii Department of Health should urge local refineries to install desulfurization equipment or require the electric company to purchase low sulfur (0.1% S) fuel oil or (0.05% S) #2 distillate oil from outside the State. Petitioner further indicates that while this would result in higher fuel costs, "the majority of Hawaiians would willingly agree to a reasonable increase in power rates if it means improving the air quality in these beautiful islands." Petition at 2. More specifically, Petitioner would like to see the HC&S permit reflect SO2 and NOx limits "much more stringent than BACT as defined in the Federal regulations," following the practice of some Air Quality Management Districts in California.

9 This situation was presented in In re Old Dominion Electric Cooperative, PSD Appeal 91-39 (January 29, 1992). In that instance, the State determined that requiring a coal-fired steam electric generating station to use natural gas as an alternative fuel would redefine the source. It further concluded that it was not empowered to do this unless the facility as proposed would not meet all Federal and State air emission limitations or would result in a violation of a national ambient air quality standard. While the Administrator of EPA found no clear error in the State's handling of the matter, he stated that "EPA construes the 1990 Amendments as conferring discretion on the permit issuer to consider fuels other than those proposed by the permit applicant." Id. at p. 25.

10 The State may not view its authority under State law as being extensive enough to take advantage of the flexibility afforded under the Federal PSD regulations. See note 7 supra.

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