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Tennessee Valley Authority, Paradise Fossil Plant; Petition to Object to Title V Operating Permit

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Tennessee Valley Authority, Paradise Fossil Plant; Petition to Object to Title V Operating Permit BEFORE THE ADMINISTRATOR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ) In the Matter of: ) ) Tennessee Valley Authority ) Paradise Fossil Plant 1 Title V Operating Permit ) Petition No. V-07 V-07-018 ) ) Issued by the Kentucky Environmental ) and Public Protection Cabinet 1 PRESTON FORSYTHE, CENTER FOR BIOLOGICAL DIVERSITY, KENTUCKY HEARTWOOD, SIERRA CLUB AND HILARY LAMBERT'S PETITION TO HAVE THE ADMINISTRATOR OBJECT TO THE TENNESSEE VALLEY AUTHORITY'S PARADISE FOSSIL PLANT'S TITLE V PERMIT I. INTRODUCTION Pursuant to Section 505(b)(2)of the Clean Air Act, 42 U.S.C. § 7661d(b)(2), Preston Forsythe, the Center for Biological Diversity, Kentucky Heartwood, Sierra Club, and Hilary Lambert petition the Acting Administrator of the U.S. Environmental Protection Agency ("the Administrator" or "EPA") to object to the Title V operating permit issued by the Kentucky Environmental and Public Protection Cabinet, Department for Environmental Protection, Division for Air Quality (Kentucky DAQ), for the Tennessee Valley Authority Paradise Fossil Plant ("TVA Paradise"). The Administrator is required to object to the TVA Paradise permit because, as demonstrated below, the content of the permit does not meet (1)requirements found in the Clean Air Act, (2) requirements found in the federal operating permit regulations, and (3) requirements found in the Commonwealth of Kentucky's State Implementation Plan ("SIP"). 11. PARTIES Petitioners Preston Forsythe and Hilary Lambert are Kentucky residents who live, recreate, and obtain spiritual and aesthetic pleasure from locations that are, and will continue to be adversely affected by the air pollution, or risk of excess air pollution, from TVA Paradise that is made possible by the flaws in the TVA Paradise operating permit. Petitioner Center for Biological Diversity (CBD) is a non-profit corporation with its headquarters in Tucson, Arizona. Striving to secure a future for animals and plants hovering on the brink of extinction, for the wilderness they need to survive, and by extension for the spiritual welfare of generations to come, CBD is actively involved in species and habitat protection advocacy throughout the United States. Petitioner Kentucky Heartwood is a non-profit group that seeks to protect and restore the integrity, stability, and beauty of Kentucky's native forests and biotic communities through research, education, and advocacy. Many of Kentucky Heartwood's members actively use Mammoth Cave National Park and the surrounding areas for recreational and aesthetic purposes such as hiking and nature study and will continue to do so in the future. CBD and Kentucky Heartwood members and staff live, recreate, and obtain spiritual and aesthetic pleasure from locations that are, and will continue to be adversely affected by the air pollution, or risk of excess air pollution, from TVA Paradise that is made possible by the flaws in the TVA Paradise operating permit. Sierra Club is a non-stock, non-profit environmental organization, formed in 1892 to enhance and improve the environment of the United States, including Kentucky. Sierra Club members live, work, and recreate in the air shed that is impacted by air pollution emissions from the TVA-Paradise power plant, and use surface waters that are impacted by mercury and other pollutants emitted from the plant. 111. PREVIOUS PROCEEDINGS The EPA granted final approval of the Kentucky Title V operating permit program on October 31,2001. 66 Fed. Reg. 54,953 (Oct. 31,2001). The Division of Air Quality of the Kentucky Environmental and Public Protection Cabinet ("Kentucky DAQ") is the agency responsible for issuing Title V operating permits in Kentucky. 401 KAR 52:020. Kentucky DAQ published notice for public comment on a draft Title V operating permit for TVA Paradise on August 18,2004. Kentucky DAQ then granted the public a thirty-day period to comment on the draft permit amendments. Petitioners Preston Forsythe, CBD, Kentucky Heartwood, and Hilary Lambert submitted written comments to Kentucky DAQ during the public comment period. See Ex. 1. Kentucky then issued the final Title V permit on December 29,2004. See http:/ / www.air.ky.gov/ permitting/Tennessee+Valley+Authori.h. A little over a week after issuing the final permit, on January 7,2005 Kentucky DAQ issued the proposed permit to EPA in apparent violation of 40 CFR 5 70.7(a)(v). A little over two weeks after issuing the final Title V permit, Kentucky DAQ responded to Petitioners and other comments on January 13,2005. See Ex. 2. Thus, the final decision maker at Kentucky DAQ did not have the benefit of Kentucky DAQ's response to comments and EPA did not have the benefit of Kentucky DAQ's response to Petitioners' comments during EPA's complete 45 day review period. Amended responses to comments were later issued on March 9,2005, and April 21,2005. See Exs. 3 and 4. EPA objected to the permit on February 18,2005, during its 45 day review period, to the TVA Paradise Title V permit based on two grounds: 1. The permit was deficient because it failed to include operations limitations (heat input limits) from State Operating Permits 0-87-012 and 0-86-75, in violation of 40 C.F.R. 5 70.6(a)(l). Failure to include periodic monitoring for lime storage silos and handling systems to ensure compliance with the maximum hourly throughput limits in violation of 40 C.F.R. 5 70.6(a)(3)(B). See Letter from Beverly H. Banister, Director, Air, Pesticides and Toxics Management Division, USEPA Region 4, to John S. Lyons, Director, Department of Environmental Protection (February 18,2005); attached as Exhibit 5. On April 9,2007, the applicant, TVA, submitted an updated application addressing EPA's February, 2005, objection. TVA requested on June 23,2006, that the original permit for Paradise, which had been issued despite EPA's objection, be withdrawn. DAQ subsequently issued a new draft permit. On July 31,2007, Petitioners again submitted comments. See Ex. 6. Each of the grounds for objection described in this Petition were raised with specificity during the public comment period provided by Kentucky DAQ. DAQ proposed a permit for TVA Paradise to the U.S. EPA on August 14,2007. See Ex. 7. A final permit was issued on November 1,2007. See Ex. 8. This Petition meets the procedural conditions set forth in Section 505(b)(2) of the Act and the parallel regulations. See42 U.S.C. 5 7661d(b)(2);40 C.F.R. § 70.8(d); 401 K.A.R. 52:100 5 10(9)(a). IV. FACTS TVA Paradise is a coal-fired power plant located on the Green River in Muhlenberg County in Western Kentucky. Consisting of three coal-fired boilers, as well as coal and limestone handling equipment, building heat boilers and heaters, and ash and gypsum disposal processes, TVA Paradise operations emit over 100,000 tons of Sulfur Dioxide (SO4 and nearly 40,000 tons of Nitrogen Oxides (NOx) into Kentucky's air each year. TVA Paradise is located near Mammoth Cave National Park. In 1981, the United Nations Educational Scientific and Cultural Organization (UNESCO) designated Mammoth Cave National Park as a World Heritage Site for its exceptional natural features, its habitat for threatened and endangered species, and its association with events and persons of world historic and archeological significance. Home to more than sixty (60) miles of backcountry trails, one of only four old-growth forest areas left in Kentucky, and the longest recorded cave system in the world, Mammoth Cave National Park hosted more than 1.8 million recreational visitors in 2003. Mammoth Cave National Park is the home of several species that are currently listed as endangered or threatened under the ESA. These species include the Eggert's Sunflower (Helianthus eggertii), Indiana bat (Myotis sodalist), Kentucky Cave Shrimp (Palaemonias gnnteri), Ring Pink Mussel (Obovaria retusa), Rough Pigtoe Mussel (Pleurobema plenum), Tuberculed-blossom Pearly Mussel (Epioblasmn torulosa sulcata), Fanshell Mussel (Cyprogenia Stegaria), Northern Riffleshell Mussel (Epioblasma torulosa mngznna), and Clubshell Mussel (Pleurobema clam). Unfortunately air pollution plagues Mammoth Cave National Park. In fact, the National Parks Conservation Association has determined that Mammoth Cave National Park has the third worst air pollution problem out of all of the National Parks in the nation. See http:// www.npca.org/ across~the~nation/visitor~experience/code~red/conclusions.as P V. ARGUMENT A. LEGAL BACKGROUND AND STANDARD OF REVIEW The Clean Air Act is "Congress's response to well-documented scientific and social concerns about the quality of the'air that sustains life on earth and protects it from . degradation and pollution caused by modern industrial society." Delaware Valley Citizens Council for Clean Air v. Davis, 932 F.2d 256,260 (3rd Cir. 1991). A key component of achieving the Clean Air Act's goal of protecting our precious air is the Title V operating permit program. Title V permits are supposed to consolidate all of the requirements for a facility into a single permit and provide for adequate monitoring and reporting to ensure the regulatory agencies and the public that the permittee is complying with its permit. See generally S. Rep. No. 101-228 at 346-47; see also In re: Roosevelt Regional Landfill, (EPA Administrator May 11,1999) at 64 FR 25,336. When a state or local air quality permitting authority issues a Title V operating permit, the EPA will object if the permit is not in compliance with any applicable requirement or requirements under 40 CFR Part 70. 40 CFR 5 70.8(c). However, if the EPA does not object on its own, then "any person may petition the Administrator within 60 days after the expiration of the Administrator's 45-day review period to make such objection." 40 CFR 5 70.8(d); 42 U.S.C.
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