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187-274/Sections06 10/9/01 2:25 PM Page 121 KNAUF FIBER GLASS, GMBH 121 IN RE KNAUF FIBER GLASS, GMBH PSD Appeal Nos. 98–3 through 98–20 ORDER DENYING REVIEW IN PART AND REMANDING IN PART Decided February 4, 1999 Syllabus On March 30, 1998, the Shasta County, California, Air Quality Management District (“AQMD”) issued a federal Clean Air Act prevention of significant deterioration (“PSD”) permit to Knauf Fiber Glass, GmbH, authorizing the construction of a new fiberglass manufacturing plant to be located in the City of Shasta Lake, California. Petitions for review of the PSD permit were filed by seventeen private citizens and citizens’ groups and by EPA Region IX. The petitions for review cover the spectrum of issues relating to PSD review, as well as several issues that fall outside of the Board’s jurisdiction over PSD permit decisions. This decision discusses each of the issues raised in the petitions for review in reaching the holdings summarized below. Held: Review is granted and AQMD’s permit decision is remanded as to the following issues: •The BACT determination is being remanded to AQMD due to an incomplete BACT analysis. Petitioners have raised legitimate questions about the particular control technology and emission limits for the proposed facility in light of alternative pollution control equipment configurations at other fiberglass manufacturing facilities. The record does not show that AQMD adequately considered the comments received on BACT. AQMD is to prepare a supplemental BACT analysis that identifies multiple pollution control options and provides infeasibility analyses as necessary. In preparing the supplemental BACT analysis, AQMD need not require Knauf to pursue its competitors’ trade secrets, but it must consider pollution control designs for other facilities that are a matter of public record. (Section II.B.1.) •The issue regarding environmental justice considerations is being remanded to AQMD in order that an environmental justice determination prepared by EPA Region IX may be added to the administrative record and made available for public comment. (Section II.E.) Review is denied as to all other issues raised in the petitions for review, including the following: •AQMD’s explanation for its use of PM10 monitoring data and meteorological data from Redding, California, in lieu of on-site data, was adequate in light of the general comments on data representativeness raised during the public comment period. (Section II.B.2.a.) VOLUME 8 187-274/Sections06 122 10/9/01 2:25 PM Page 122 ENVIRONMENTAL ADMINISTRATIVE DECISIONS •The air quality analysis for the proposed facility takes into account emissions from other sources and adequately demonstrates compliance with the PM10 NAAQS and PSD increments. (Section II.B.2.b.) •Potential adverse impacts in nearby Class I and Class II areas have been adequately addressed in the administrative record. The air quality analysis demonstrates that there will be no significant air quality impacts in Class I areas. A visibility analysis was performed for three Class II National Recreation Areas and AQMD concluded that visibility impacts from the proposed facility would be less than significant. (Section II.B.3.) •Review of issues pertaining to hazardous air pollutants and/or unregulated pollutants is denied because control of such pollutants is not an explicit requirement of the federal PSD program and petitioners have not shown that their concerns otherwise fall within the purview of the federal PSD program. (Section II.C.1.) •The use of a local landfill for disposal of solid waste from the proposed facility is not subject to PSD review because: 1) waste disposal practices, including controls on the types of waste that may be handled at a particular landfill, are not governed by the Clean Air Act; and 2) petitioners have not established that potential emissions from a landfill site constitute “secondary emissions” within the meaning of 40 C.F.R. § 52.21(b)(18). (Section II.C.2.) •Requirements in the permit calling for PM 10 offsets and mitigation measures are not requirements of the federal PSD program and petitioners have not shown that these issues otherwise come within the purview of the federal PSD program. Therefore, the Board denies review of these issues. (Section II.C.3.) •The Board denies review of petitioners’ allegations regarding the impact of Shasta County politics on the permit review process because the issues raised do not pertain to requirements of the federal PSD program. (Section II.C.4.) Before Environmental Appeals Judges Ronald L. McCallum and Edward E. Reich. 1 Opinion of the Board by Judge McCallum: On March 30, 1998, the Shasta County, California, Air Quality Management District (“AQMD”) issued a federal prevention of significant deterioration (“PSD”) permit, pursuant to Clean Air Act § 165, 42 U.S.C. § 7475, to Knauf Fiber Glass, GmbH (“Knauf”). The permit authorizes the construction of a new fiberglass manufacturing plant to be located in the City of Shasta Lake, California. AQMD is authorized to make PSD permit 1 Environmental Appeals Judge Kathie A. Stein did not participate in this decision. Pursuant to an order issued February 4, 1999, the Board revised portions of its November 30, 1998 Order Denying Review in Part and Remanding in Part in this case to clarify certain language in the interest of avoiding possible misinterpretation. See Order on Motions for Reconsideration (EAB, Feb. 4, 1999). This revised decision replaces and supersedes the November 30, 1998 decision. The November 30th decision, therefore, has no precedential value in this or any other case. VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 123 KNAUF FIBER GLASS, GMBH 123 decisions for new and modified stationary sources of air pollution in Shasta County pursuant to a 1985 delegation agreement with EPA Region IX. Because AQMD acts as EPA’s delegate under the PSD program, permits are considered EPA-issued permits, and appeals of the permit decisions are heard by the Environmental Appeals Board pursuant to 40 C.F.R. § 124.19. See In re Maui Elec. Co., 8 E.A.D. 1, 2 n.1 (EAB 1998). In this case, appeals of AQMD’s permit decision for Knauf were filed by seventeen private citizens and citizens’ groups and by EPA Region IX. I. BACKGROUND The City of Shasta Lake (“COSL”) is a recently incorporated city in Shasta County, California, looking to create economic growth through business development. Knauf would like to construct a new fiberglass insulation manufacturing plant in COSL to serve the fiberglass market on the west coast. COSL and the rest of Shasta County enjoy relatively clean air. Shasta County has been designated an attainment or unclassifiable area for national ambient air quality standards (“NAAQS”) pursuant to section 107 of the Clean Air Act (“CAA”).2 42 U.S.C. § 7407; see also 40 C.F.R. § 81.305 (attainment status designations for California). COSL is in close proximity to several national recreation areas, national wilderness areas, and a national park. Thus, the setting for this case involves virtually all of the factors enumerated in the congressional declaration of purpose for the prevention of significant deterioration provisions of the CAA. CAA § 160, 42 U.S.C. § 7470. The PSD provisions outline a framework for managing economic growth in areas of the country that meet NAAQS (or are designated as “unclassifiable”). The provisions also call for special attention to air quality in certain national parks and national wilderness areas. CAA §§ 160(2), 165(d), 42 U.S.C. §§ 7470(2), 7475(d). The statutory PSD provisions are carried out through a regulatory process that requires preconstruction permits for new and modified major stationary sources. See 40 C.F.R. § 52.21. PSD permitting requires that several important analyses be performed and taken into consideration in setting permit terms and conditions. One of the most critical elements of the permit process is the selection of “best available control technology” or 2 NAAQS are maximum ambient air concentrations for the following six pollutants: sulfur dioxide, particulate matter (“PM”), carbon monoxide, ozone, nitrogen dioxide, and lead. 40 C.F.R. §§ 50.4-50.12. VOLUME 8 187-274/Sections06 124 10/9/01 2:25 PM Page 124 ENVIRONMENTAL ADMINISTRATIVE DECISIONS “BACT” for pollutants subject to PSD review.3 An air quality analysis is also required, the primary purpose of which is to determine whether a proposed project would cause or contribute to exceedances of NAAQS or PSD increments.4 Special review procedures apply to those projects whose emissions may impact certain national parks, wilderness areas, or other designated areas with “special national or regional natural, recreational scenic, or historic value.” CAA §§ 160(2), 165(d), 42 U.S.C. §§ 7470(2), 7475(d). In addition to the technical requirements of PSD review, the Clean Air Act emphasizes the importance of public participa tion and input into the decisionmaking process. See CAA §§ 160(5), 165(a)(2), 42 U.S.C. §§ 7470(5), 7475(a)(2). Each of these elements, and several collateral concerns are at issue in this case and are discussed more fully infra Sections II.B. and II.C. A major industrial development project potentially involves numerous permitting and approval requirements by federal, state, and local agencies. The PSD permit process is just one of these requirements. The proposed Knauf project required a variety of permits and approvals in addition to the PSD permit that is presently before us. In this case, PSD review began after other review and approval procedures were underway. In particular, in November 1996, COSL initiated a review process required by the California Environmental Quality Act (“CEQA”), Cal. Pub. Res. Code § 21000 et seq. The principal product of the CEQA process was the generation of an environmental impact report (“EIR”).5 In conjunction with the CEQA process, COSL issued a conditional use permit, containing conditions on a wide variety of issues affecting construction and operation of the proposed facility. CEQA, the EIR, and the conditional use permit are distinct from PSD review and the PSD permit decision issued by the AQMD pursuant to the Clean Air Act. PSD review is triggered only for those pollutants that a new source has the potential to emit at rates equal to or in excess of “significant” rates specified in 40 C.F.R. § 52.21(b)(23). See infra note 6 and accompanying text for a discussion of the significant levels as applied to this case. 3 4 PSD increments are maximum allowable increases in pollutant concentrations permissible by regulation. See 40 C.F.R. § 52.21(c). The amount of the allowable increase depends upon the classification of the area impacted by the emissions. See infra Section II.B.3 for a discussion of area classifications. 5 Three versions of the EIR were prepared over the course of the CEQA process. They are cited in this decision as follows: CH2MHill, City of Shasta Lake Industrial Project Draft EIR (Feb. 1997) (“Draft EIR”); CH2MHill, Knauf Fiber Glass Manufacturing Facility Revised Draft EIR (July 1997) (“Revised EIR”); CH2MHill, Final EIR Knauf Fiber Glass Manufacturing Facility (Oct. 1997) (“Final EIR”). VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 125 KNAUF FIBER GLASS, GMBH 125 Knauf submitted a PSD permit application for the proposed fiberglass facility to the AQMD in March 1997. The facility is designed to manufacture fiberglass insulation via a rotary spin manufacturing process. The plans for the facility include production of 195 tons of insulation per day and 24-hour operations. The proposed facility is subject to the PSD permitting process because it constitutes a “major stationary source” under the PSD regulations. 40 C.F.R. § 52.21(b)(1)(i)(a). Federal PSD review is required for emissions of particulate matter less than 10 micrometers in diameter (“PM10”) because the potential PM10 emissions from the proposed Knauf facility exceed the “significant” level specified in the PSD regulations.6 Emissions of other pollutants do not exceed the regulatory significant levels and are not subject to PSD review. On November 24, 1997, the AQMD issued a draft PSD permit for the proposed Knauf facility and opened a 45–day public comment period. A public hearing was held on January 7, 1998. AQMD issued its final permit decision on March 30, 1998. Federal Prevention of Significant Deterioration (PSD) Authority to Construct (Mar. 30, 1998) (“Permit”). At that time, AQMD also published two documents responding to comments received during the public comment period and at the hearing. Response to Comments, Written Comments Submitted During Public Comment Period (“RTC”); Response to Comments, Public Hearing 1/7/98 (“RTPH”). The Board received eighteen petitions for review regarding AQMD’s permit decision for Knauf. Seventeen of the petitions for review were filed by local citizens or citizens’ groups.7 One petition for review was filed by EPA Region IX, the EPA regional office with responsibility for activities in California. Petition No. 98–19. A large number of the citizen petitions express displeasure over the decision to site the Knauf facility in COSL, or the Shasta County region generally. Several petitioners requested that the permit be denied. In addition, each petition raised one or more issues challenging conditions of the permit and/or elements of the permitting process. 6 PSD review is triggered for PM10 if a source has the potential to emit 15 tons per year or more of PM10 emissions. 40 C.F.R. § 52.21(b)(23)(i). The proposed Knauf facility is expected to emit PM 10 at a rate of 191 tons per year. The petitioners (and corresponding appeal numbers) are: Bryan Hill, Mother Lode Chapter, Sierra Club (98–3), Laurie Holstein, Citizens for Cleaner Air (98–4), Ivan Hall (98–5), Mary Scott, Citizens for Cleaner Air (98–6), Citizens for Responsible Growth & Valley Advocates, Inc. (98–7), Colleen Leavitt (98–8), Barbara Frisbie (98–9), Robert Swendiman (98–10), Fulton M. Doty (98-11), Linda Andrews (98–12), Arnold Erickson (98–13), Laurie O’Connell (98–14), Betty Doty (98–15), Warren L. Teel (98–16), John Hickey (98–17), Patricia Cogburn (98–18), and Deborah Lynn Fisher (98–20). The petitions for review are cited throughout this decision as “Petition No. __.” 7 VOLUME 8 187-274/Sections06 126 10/9/01 2:25 PM Page 126 ENVIRONMENTAL ADMINISTRATIVE DECISIONS In accordance with the Board’s practice in permit appeals, the Board requested that AQMD prepare responses to the petitions for review.8 In addition, acting on motions, the Board granted Knauf an opportunity to file a response to the petitions and accepted an amicus brief from COSL. Order on Pending Motions (June 23, 1998). The Board also provided petitioners an opportunity to file replies to the materials submitted by Knauf, AQMD, and COSL. 9 Id. Region IX’s reply memorandum presented a proposed settlement of the issue presented in its petition for review.10 In response to a motion, the Board granted petitioners who had raised the same issue as Region IX an opportunity to submit a response to the settlement proposed in Region IX’s memorandum. Order Granting Opportunity to Respond to Reply Memorandum Submitted by EPA Region IX (Aug. 6, 1998).11 II. DISCUSSION A. Standard of Review The role of the Environmental Appeals Board in the PSD permitting process is to consider issues raised in petitions for review that pertain to the PSD program and that meet the threshold procedural requirements of the permit appeal regulations. See 40 C.F.R. § 124.19. A petitioner must have both standing to appeal and must be seeking review of issues that have been properly preserved for review. If these threshold requirements are satisfied, the Board will consider whether to “grant review” of any of the issues included in a petition for review. The permit appeal regulations provide for review only if a permit decision was based on either a clearly erroneous finding of fact or 8 AQMD’s responses are cited in this decision as “AQMD [Petition #] Resp.” The Board considered all petitioner replies that related to issues raised in the petitions for review. The Board did not consider new issues raised in the reply briefs. New issues raised for the first time at the reply stage of these proceedings are equivalent to late filed appeals and must be denied on the basis of timeliness. See In re Beckman Prod. Servs., 5 E.A.D. 10, 15 (EAB 1994) (denying review of a petition that was filed after the thirty-day period specified in 40 C.F.R. § 124.19(a)). The petitioner replies are cited as “Reply [Petition #].” 9 10 The details of the proposed settlement are discussed infra notes 35–36 and accompanying text. The Board’s August 6, 1998 order provided the final opportunity for submitting materials to be considered by the Board in reaching a decision on whether or not to grant review. Correspondence received after the deadline set forth in the order was not considered by the Board. 11 VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 127 KNAUF FIBER GLASS, GMBH 127 conclusion of law, or if the decision involves an important matter of policy or exercise of discretion that warrants review. 40 C.F.R. § 124.19(a). In applying this standard for granting review, the Board has been guided by the following language in the preamble to section 124.19: the “power of review should be only sparingly exercised” and “most permit conditions should be finally determined at the [permitting authority] level.” 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); accord In re Maui Elec. Co., 8 E.A.D. 1, 7 (EAB 1998); In re Kawaihae Cogeneration Project, 7 E.A.D. 107, 114 (EAB 1997). One way that the Board implements the standard of review in 40 C.F.R. § 124.19 is to require petitioners to state their objections to a permit and to explain why the permitting authority’s response to those objections (for example, in a response to comments document) is clearly erroneous or otherwise warrants review. Kawaihae, 7 E.A.D. at 114; In re Puerto Rico Elec. Power Auth., 6 E.A.D. 253, 255 (EAB 1995). It is not enough to simply reiterate comments made to the permitting authority. In re LCP Chems., 4 E.A.D. 661, 664 (EAB 1993). Despite the strict standard of review and the Board’s expectations in petitions for review, the Board tries to construe petitions filed by persons unrepresented by legal counsel broadly. See In re Envotech, L.P., 6 E.A.D. 260, 268 (EAB 1996); In re Beckman Prod. Servs., 5 E.A.D. 10, 19 (EAB 1994). The Board does not expect such petitions to contain sophisticated legal arguments or to employ precise technical or legal terms. However, the Board does expect such petitions to provide sufficient specificity such that the Board can ascertain what issue is being raised. Puerto Rico, 6 E.A.D. at 255. The Board also expects the petition to articulate some supportable reason as to why the permitting authority erred or why review is otherwise warranted. Beckman, 5 E.A.D. at 19. Finally, it is possible that some issues will still not warrant a grant of review, even if the issues have been properly preserved for review and the petitions contain sufficient specificity. Issues that are not covered by the PSD program fall into this category. The PSD review process is not an open forum for consideration of every environmental aspect of a proposed project, or even every issue that bears on air quality. In fact, certain issues are expressly excluded from the PSD permitting process. The Board will deny review of issues that are not governed by the PSD regulations because it lacks jurisdiction over them. The majority of issues raised in the petitions for review can be loosely categorized into three groups. The first group includes issues that are reviewable under the PSD program and that were properly preserved for VOLUME 8 187-274/Sections06 128 10/9/01 2:25 PM Page 128 ENVIRONMENTAL ADMINISTRATIVE DECISIONS review in this case. We refer to these issues as “PSD issues.” The PSD issues include, among others: questions about AQMD’s BACT determination, adequacy of the air quality analysis, and issues relating to impacts in Class I and Class II areas. The second group of issues are items that fall outside of the Board’s jurisdiction over PSD permit decisions because, as presented in the petitions, they lack a nexus to the PSD program. These issues are denominated “non-PSD” issues for convenient reference. Some of the non-PSD issues are: control of hazardous air pollutants and “unregulated” pollutants, disposal of fiberglass waste at local landfills, plans for PM10 mitigation, adequacy of the EIR prepared pursuant to CEQA, and the role of Shasta County politics in the permitting process. In the third category are a few issues that must be denied because the threshold requirements for review under 40 C.F.R. § 124.19 were not satisfied. Last, we address the issue of environmental justice, which does not readily fit into one of the three categories mentioned above. B. PSD Issues 1. BACT Determination The Clean Air Act and the PSD regulations require that major new stationary sources such as the proposed Knauf facility employ the “best available control technology” to limit emissions of certain pollutants. CAA § 165(a)(4), 42 U.S.C. § 7475(a)(4); 40 C.F.R. § 52.21(j)(2). BACT is defined in the PSD regulations as follows: Best available control technology means an emissions limitation * * * based on the maximum degree of reduction for each pollutant subject to regulation under [the] Act which would be emitted from any proposed major stationary source * * * which the Administrator, on a caseby-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such source * * * through application of production processes or available methods, systems, and techniques * * * for control of such pollutant. 40 C.F.R. § 52.21(b)(12). As the definition indicates, there are several considerations that form a part of the BACT determination. The combined result of these considerations is the selection of an emission limitation12 and control technology that are specific to a particular facility. In reaching 12 The term “emission limitation” is defined broadly in the CAA: Continued VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 129 KNAUF FIBER GLASS, GMBH 129 this facility-specific result, the emission limitations achieved by other facilities and corresponding control technologies used at other facilities are an important source of information in determining what constitutes best available. In an effort to lend some consistency and a framework to BACT determinations being made by permit issuing authorities such as AQMD, EPA has issued a guidance document that is widely used in PSD reviews. U.S. EPA, New Source Review Workshop Manual (Draft Oct. 1990) (“NSR Manual”).13 A section of the NSR Manual addresses the BACT determination process. The NSR Manual’s approach is structured to take into account all of the elements in the regulatory definition of BACT. The essence of the BACT determination process as described in the NSR Manual is to look for the most stringent emissions limits achieved in practice at similar facilities and to evaluate the technical feasibility of implementing such limits and/or control technologies for the project under consideration. The BACT process leads to the selection of specific emission limitations through an analysis of pollution control options for the proposed project. A control option may be an “add-on” air pollution control technology that removes pollutants from a facility’s emissions stream, or an “inherently lower-polluting process/practice” that prevents emissions from being generated in the first instance. NSR Manual at B.10, B.13. The petitioners’ challenges to the BACT determination in this case raise issues relating to both add-on control technology and inherently lower-polluting processes. The BACT selection process, as set forth in the NSR Manual, was most recently outlined by the Board in Maui Elec., 8 E.A.D. at 6.14 The first step in the BACT selection process involves identifying and listing all ‘[E]mission limitation’ * * * mean[s] a requirement * * * which limits the quantity, rate, or concentration of emissions of air pollutants on a continuous basis, including any requirement relating to the operation or maintenance of a source to assure continuous emission reduction, and any design, equipment, work practice, or operational standard promulgated under [the CAA]. CAA § 302(k), 42 U.S.C. § 7602(k). An emission limitation is ordinarily expressed as a numerical limit on the rate of emissions. 13 Although the NSR Manual is not a binding rule, we have looked to it as a statement of the Agency’s thinking on certain PSD issues. See, e.g., In re Maui Elec. Co., 8 E.A.D. 1, 5 (EAB 1998); In re Kawaihae Cogeneration Project, 7 E.A.D. 107, 112 (EAB 1997). 14 The BACT process described in the NSR Manual is not a mandatory methodology, but permitting authorities normally use it. See Kawaihae, 7 E.A.D. at 113. EPA recommends use of the NSR Manual methodology because it provides for application of all of the BACT regulatory criteria through a step-wise framework, that if followed, should yield a Continued VOLUME 8 187-274/Sections06 130 10/9/01 2:25 PM Page 130 ENVIRONMENTAL ADMINISTRATIVE DECISIONS “available” control options. NSR Manual at B.5. The term available is used in its broadest sense under the first step and refers to control options with a “practical potential for application to the emissions unit” under evaluation. Id. (emphasis added). The goal of this step is to develop a compr ehensive list of control options. In compiling the list of available control options, a variety of information sources may be reviewed, including information on pollution control and emission limitations for other industrial facilities. The second step of the BACT analysis is to consider the technical feasibility of the control options identified in step one. During the course of this step, technically infeasible control options are eliminated from consideration. Id. at B.7. The purpose of this step of the BACT analysis is to determine which of the options identified in step one can be practically deployed on the proposed project. The technical feasibility step focuses on whether a control option is “available” and “applicable.” Id. at B.17. Availability in this context is somewhat different from the concept of “available” in step one. For purposes of technical feasibility, available refers to commercial availability. Id. A technology is considered applicable if it can be “reasonably installed and operated on the source type under consideration.” Id. Applicability focuses on how a particular control option has been used in the past and how those uses compare to the project under consideration. A control option is presumed applicable if it has been used on the same or similar type of source as the proposed project. Id. at B.18. Issues of applicability may be particularly critical in analyzing inherently lowerpolluting processes and other types of process controls. If a permit applicant asserts that a particular control option is technically infeasible, the applicant should provide factual support for that assertion. Such factual support may address commercial unavailability or difficulties associated with application of a particular control to the permit applicant’s project. Id. at B.19. A control option is not considered infeasible simply based upon the cost of applying that option to the proposed project. Economic feasibility is evaluated in a subsequent step of the BACT process. Id. at B.20. defensible BACT determination. We would not reject a BACT determination simply because the permitting authority deviated from the NSR Manual, but we would scrutinize such a determination carefully to ensure that all regulatory criteria were considered and applied appropriately. VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 131 KNAUF FIBER GLASS, GMBH 131 The technical feasibility analysis requires application of technical judgment on the part of the permitting authority. The permitting authority must assess the materials presented by the permit applicant and ultimately must decide which options are technically feasible. Id. at B.22. Once technical feasibility has been considered and any infeasible options are eliminated, the third step of the BACT analysis is to list the remaining options in order of stringency, with the most stringent option listed first. In step four, collateral energy, environmental, and economic impacts are considered, beginning with the “top” control option.15 Consideration of these collateral impacts “operates primarily as a safety valve whenever unusual circumstances specific to the facility make it appropriate to use less than the most effective technology.” In re Columbia Gulf Transmission Co., 2 E.A.D. 824, 827 (Adm’r 1989). Collateral impacts are generally reviewed in determining which of several available control technologies produces less adverse collateral effects, and whether such effects justify the use of a less stringent control technology.16 In re Old Dominion Elec. Coop., 3 E.A.D. 779, 792 (Adm’r 1992). In short, under the NSR Manual methodology, consideration of collateral impacts is used to either confirm the top BACT option as appropriate or to demonstrate that it is inappropriate. Maui Elec., 8 E.A.D. at 6. If the top option is eliminated based on one of these considerations, the next most stringent option is considered. Ultimately, “[t]he most effective control alternative not eliminated * * * is selected as BACT.” NSR Manual at B.53. The BACT analysis is one of the most critical elements of the PSD permitting process. As such, it should be well documented in the administrative record. A permitting authority’s decision to eliminate potential control options as a matter of technical infeasibility, or due to collateral impacts, must be adequately explained and justified. See In re Masonite Corp., 5 E.A.D. 551, 566 (EAB 1994) (remanding PSD permit decision in part because BACT determination for one emission source was based on an incomplete cost-effectiveness analysis); In re Pennsauken County, N.J., Resource Recovery Facility, 2 E.A.D. 667, 672 (Adm’r 1988) (remanding PSD permit decision because “[t]he applicant’s BACT analysis * * * does not contain the level of detail and analysis necessary to satisfy the applicant’s burden” of showing that a particular control technology is 15 Collateral energy and economic impacts need not be analyzed if the permit applicant accepts the top control option. NSR Manual at B.26. Consideration of collateral environmental impacts is nonetheless expected at this step. Id. 16 In some cases—for example, when BACT is analyzed outside the structured approach of the NSR Manual—consideration of collateral impacts, particularly collateral environmental impacts, may require rejection of a less stringent control option in favor of a more stringent option. See In re North County Resource Recovery Assocs., 2 E.A.D. 229, 230-31 (Adm’r 1986). VOLUME 8 187-274/Sections06 132 10/9/01 2:25 PM Page 132 ENVIRONMENTAL ADMINISTRATIVE DECISIONS technically or economically unachievable); Columbia Gulf, 2 E.A.D. at 830 (permit applicant and permit issuer must provide substantiation when rejecting the most effective technology). In the context of a permit appeal, the Board will look at the BACT determination, as documented in the record, to determine whether it reflects “considered judgment” on the part of the permitting authority. See In re Ash Grove Cement Co., 7 E.A.D. 387, 417–19 (EAB 1997) (remanding RCRA permit because permitting authority’s rationale for certain permit limits was not clear and therefore did not reflect considered judgment); In re Austin Powder Co., 6 E.A.D. 713, 720 (EAB 1997) (remand due to lack of clarity in permitting authority’s explanation). The BACT determination at issue in this case involves control of PM10 emissions from the forming section of the proposed Knauf facility. Virtually all of the PM10 emissions from the plant are generated by the forming process. AQMD’s PM10 BACT determination for Knauf’s forming section is memorialized in a permit condition requiring installation of seven venturi17 scrubbers followed by a wet electrostatic precipitator (“WEP”).18 Permit ¶ 48.a. These items are add-on pollution control technologies that remove particulate matter from the exhaust gas stream before release through the main stack. The PM10 emission limit (i.e., maximum allowable emission rate) from the main stack is 43.6 lbs/hr or 5.37 lbs/ton of glass pulled.19 Permit ¶ 53. Although these limits are for PM10, the values in the permit are expressed as total suspended particulate (“TSP”).20 The permit also imposes a production limit of 195 tons of glass per day. 21 Permit ¶ 36. 17 The permit specifically calls for venturi scrubbers, although other documents in the administrative record refer to the scrubbers simply as “wet” scrubbers. We will follow the terminology as used in the particular record document being cited in our discussion. 18 Six of the venturi scrubbers are designated for the bonded wool forming line; one scrubber is to be used on the unbonded wool forming line. All seven scrubbers will vent to the WEP. Permit ¶ 48.a. The venturi scrubbers remove suspended particulate matter and provide “pretreatment” of the exhaust gas prior to the WEP. Id. ¶ 49. Operating parameters for the pollution control devices are specified in the permit and must be measured every 15 minutes. Id. ¶ 51. 19 Emission limits for the fiberglass industry are commonly expressed in units of pounds per ton of glass pulled. See 49 Fed. Reg. 4590, 4596 (Feb. 7, 1984). This type of limit pegs the allowable emissions to the plant’s production rate. We abbreviate these units as “lbs/ton.” 20 AQMD does not explain why PM10 limits are expressed in terms of TSP, but it appears that the test method designated in the permit for measuring PM10 emissions yields results as TSP rather than PM10. See Permit ¶ 53 (designating EPA test method 5E for determining PM10 emissions); 40 C.F.R. part 60 app. A, Method 5E. 21 Both the per hour emission limit and per ton of glass pulled limit produce nearly identical PM 10 emission rates, differing by only one pound per day. The hourly emission limit, multiplied by 24 hours, yields a daily emission rate of 1,046 lbs/day. The daily production limit multiplied by the per ton of glass pulled emission limit for PM10 yields a daily emission rate for PM 10 of 1,047 lbs/day. VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 133 KNAUF FIBER GLASS, GMBH 133 The challenges to these permit terms raised by some of the petitioners require a further examination of AQMD’s BACT determination as documented in the administrative record.22 The documentation of the BACT analysis and decision is principally in Knauf’s permit application, AQMD’s permit evaluation, the RTC, and the RTPH. Table 1 is our summary of information in the administrative record pertaining to control technologies and emission limits for PM10 on fiberglass forming lines. Each row in the table corresponds to a specific fiberglass manufacturing facility mentioned in the administrative record. For each facility, we have listed the control technology used to limit PM10 emissions from the forming line, the PM10 emission limit, and the source of information on the facility from the Knauf administrative record. As far as we can discern, this is the primary information that underlies the PM10 BACT determination for the proposed Knauf plant. The background of each of the entries in the table is explained in the subsequent discussion. TABLE 1 Administrative Record Information on PM10 Permit Limits for Fiberglass Forming Lines Company/ Location Control Technology PM10 Emission Limit Source in the Admin. Record Knauf/ Lanett,AL wet scrubber with thermal oxidizer 7.71 lbs/ton Permit Application B CertainTeed/ Chowchilla,CA wet scrubber(s) plus three WEPs ~1.0 lb/ton AQMD Evaluation/ Public Comments C Owens Corning/ Santa Clara,CA Unknown23 Unknown AQMD Evaluation D Schuller/ Willows,CA Unknown Unknown AQMD Evaluation E CertainTeed/ Kansas City, KS three WEPs 3.63 lbs/ton (as TSP) 2.02 lbs/ton (as PM 10) Public Comments F Knauf/ COSL,CA (proposed) 7 venturi scrubbers plus one WEP 5.37 lbs/ton (as TSP) Permit A 22 Our assessment of this issue is largely based upon the administrative record documents provided for our review. In addition, we reviewed the administrative record index for additional materials that appear to relate to AQMD’s BACT determination. 23 We found no information on PM10 permit limits for the forming sections of the Owens Corning or Schuller plants in the excerpts of the administrative record that were provided to us for review. VOLUME 8 187-274/Sections06 134 10/9/01 2:25 PM Page 134 ENVIRONMENTAL ADMINISTRATIVE DECISIONS Knauf’s permit application contains the initial BACT analysis for the proposed facility. PSD Permit Application Revision 2 at 26–29 (July 17, 1997) (“Permit App.”). Knauf’s BACT analysis indicates that EPA’s RACT/BACT/LAER Clearinghouse24 (“RBLC”) was searched for all fiberglass manufacturing entries since 1985. Permit App. at 28. Without discussing the results of that search, the application concludes that only one facility in the RBLC was similar to the proposed facility for Shasta Lake. “The similar facility is the Knauf GmbH Lanett, Alabama facility.” Id. The PM10 control technology used at the Lanett facility is a wet scrubber with thermal oxidizer and a corresponding emission limit of 7.71 lbs/ton. Id. See supra Table 1, Row A. The permit application for the proposed facility in COSL also discusses use of an electrostatic precipitator in order to comply with one of AQMD’s local rules. Permit App. at 29. The permit application concludes that “seven (7) wet scrubbers * * * and a wet ESP” constitute BACT and “no further evaluation of particulate control technologies is necessary.” Id. Although the permit application describes the conclusion of Knauf’s BACT analysis, it lacks a clearly ascertainable basis for the conclusion. The overall discussion is cursory and does not explain how the decision satisfies the regulatory criteria. The basis for the conclusion might have been ascertainable had Knauf documented the preliminary steps of a BACT determination as outlined in the NSR Manual and described above.25 As it stands, the permit application does not include a listing of all possible control options, a discussion of emission control technologies and limits for fiberglass manufacturing facilities other than the Knauf plant in Alabama, or a technical feasibility analysis. Without this type of information, it is impossible to know if Knauf really adopted the most stringent option available as BACT. AQMD’s Authority to Construct/PSD Permit Evaluation (Nov. 21, 1997) (“AQMD Evaluation”) provides slightly more detail on selection of BACT than the permit application. AQMD states that a survey of other 24 RACT/BACT/LAER stands for Reasonably Available Control Technology/Best Available Control Technology/Lowest Achievable Emission Rate. Each of these acronyms refers to technological standards established by different sections of the CAA. BACT is the standard from the PSD provisions of the CAA. See CAA § 165(a)(4), 42 U.S.C. § 7475(a)(4). The RBLC contains information on emission controls and emission limits for industrial facilities across the country. The RBLC is organized by source category, thereby making it relatively easy to access emission control information for a particular industrial enterprise. 25 As noted supra note 14, a strict application of the methodology described in the NSR Manual is not mandatory, but we expect an analysis that is as sufficiently detailed as the model in the NSR Manual. VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 135 KNAUF FIBER GLASS, GMBH 135 fiberglass facilities with similar emissions units in California was conducted. AQMD Evaluation at 9. The document lists three California facilities that were reviewed in addition to Knauf’s Alabama facility. The owners and locations of these other facilities are: 1) CertainTeed, in Chowchilla, CA; 2) Owens Corning, in Santa Clara, CA; and 3) Schuller/Johns Manville 26 in Willows, CA. The permit evaluation states that the CertainTeed Chowchilla plant uses a wet scrubber followed by a WEP to control PM10 emissions. Id. at 11. See supra Table 1, Row B. “No other facility appeared to have emission control equipment with this level of control.” AQMD Evaluation at 11. Presumably, this statement means that the Chowchilla facility had the best emissions control equipment of the facilities reviewed. However, there is no discussion of what controls or emission limitations are in place at the Owens Corning or Schuller/Johns Manville facilities in order to confirm that conclusion. See supra Table 1, Rows C&D. AQMD ultimately concurs in Knauf’s conclusion that wet scrubbers and a WEP is BACT for PM10. AQMD Evaluation at 11. Despite the minimal discussion in the permit application and AQMD’s evaluation regarding other facilities, the administrative record index for this project includes several items regarding the above mentioned California fiberglass facilities. 27 We do not know what these items consist of and the record does not appear to contain any analysis of the contents. It may be that some or all of these items would support the BACT determination here, however, no argument has been raised along these lines. During the public comment period on the draft permit, several commenters questioned why the PM10 BACT determination for Knauf resulted in less stringent PM10 limits than the limits at the CertainTeed Chowchilla facility. Commenters pointed out that the Chowchilla facility has a PM 10 emission limit of approximately 1.0 lb/ton. See RTC at 14, 20. In addition, EPA Region IX identified a CertainTeed facility in Kansas City, Kansas, (see supra Table 1, Row E) with lower PM10 limits than those proposed for Knauf. See RTC at 20. In response, AQMD reiterated that the control technology selected for the Knauf plant (venturi scrubbers and a WEP) constitute the most 26 The facility in Willows is referred to as both Schuller and Johns Manville in the administrative record. Items pertaining to the CertainTeed Chowchilla facility appear to be included in the administrative record index as follows: Vol. I.A. at 278-306, Vol. I.B. at 801. References to the Owens Corning facility include: Vol I.A. at 307, Vol II.E. Schuller/Johns Manville materials are listed at: Vol. I.A. at 800, Vol. II.D. 27 VOLUME 8 187-274/Sections06 136 10/9/01 2:25 PM Page 136 ENVIRONMENTAL ADMINISTRATIVE DECISIONS effective emission control devices demonstrated in practice for control of PM10 from fiberglass forming lines. RTC at 15, 21. AQMD also attempted to explain the reason for the discrepancy between emission limits at the CertainTeed facilities and the proposed Knauf plant. “[T]he emission limits established for PM 10 in other issued permits for fiberglass manufacturing facilities vary considerably since each process is different and uses patented process design techniques that are not available to others in the industry.” RTC at 21. The CertainTeed facilities use unique forming process technology that is proprietary and not available to other manufacturers. Id. CertainTeed’s unique process in Kansas City was identified only as a “European” process, the details of which are not publicly available. Id. Apparently, AQMD focused on the different process technologies used by Knauf and CertainTeed because the process “influences profoundly” the amount of PM10 emissions generated before control equipment is applied. Knauf Resp. at 22. Hence, even the use of the same addon controls may not yield the same emission rate when deployed on different processes. AQMD’s response to comments also asserted that a commenter’s request that Knauf achieve the same emission rates as the CertainTeed plants would amount to a redefinition of the source. RTC at 15, 21. AQMD presumed that Knauf would have to adopt CertainTeed’s process technology in order to achieve emission rates comparable to CertainTeed’s plants. “Redefining the source” is a term of art described in the NSR Manual. The Manual states that it is legitimate to look at inherently lower-polluting processes in the BACT analysis, but EPA has not generally required a source to change (i.e., redefine) its basic design. NSR Manual at B.13. The classic example of redefining a source involves a proposal to construct a coal-fired power plant or boiler. See In re SEI Birchwood, Inc., 5 E.A.D. 25, 29 n.8 (EAB 1994). Such a proposal need not consider the alternative of a natural gas-fired unit as part of the BACT determination, even though a natural gas unit would be inherently less polluting than the coal-fired unit. Id.; In re Hawaiian Commercial & Sugar Co., 4 E.A.D. 95, 99–100 (EAB 1992); In re Old Dominion Elec. Coop., 3 E.A.D. 779, 793 (Adm’r 1992). Substitution of a gas-fired power plant for a planned coal-fired plant would amount to redefining the source. Although it is not EPA’s policy to require a source to employ a different design, redefinition of the source is not always prohibited. This is a matter for the permitting authority’s discretion. The permitting authority may require consideration of alternative production processes in the BACT analysis when appropriate. See NSR Manual at B.13–B.14; Old Dominion, 3 E.A.D. at 793 (permit issuer has discretion “to consider clean fuels other than those proposed by the permit applicant.”). VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 137 KNAUF FIBER GLASS, GMBH 137 The petitions for review that raise the BACT issue generally reiterate the comments submitted on the draft permit.28 Several of the petitioners echo arguments made by Region IX, namely, that the PM10 emission limit for Knauf should be lowered in light of the more stringent limits in place at the CertainTeed facilities, or that Knauf should be required to demonstrate why such lower limits are infeasible. Petition No. 98–19 at 4; see also Petition Nos. 98–4, 98–5, 98–17 & 98–18. Other petitioners point out differences in the control technology configuration between CertainTeed’s Kansas City plant and Knauf’s proposal. The permit for the Kansas City facility requires use of three WEPs in its forming section, whereas the Knauf permit calls for only one WEP. Petition Nos. 98–3, 98–5 & 98–6. One petitioner, reacting to AQMD’s discussion of redefining the source, asserts that Knauf should be required to license or purchase the lower-polluting process technology used by CertainTeed. Petition No. 98–16. AQMD and Knauf present several arguments in defense of both the selected control option (i.e., venturi scrubbers and a WEP) and the emission limits (i.e., 5.37 lbs/ton and glass production limit of 195 lbs/day). With regard to the emission limits, AQMD and Knauf emphasize the differences between CertainTeed’s facilities and the proposed Knauf facility. First, AQMD argues that the CertainTeed facilities are not similar to the Knauf facility. AQMD 98–19 Resp. at 1. AQMD notes that the CertainTeed facilities use proprietary process technologies including: molten glass chemistry, glass fiberization techniques, binder chemistry, binder application techniques, mat formation methods, and product mix. Id. According to Knauf, these unique and proprietary processes affect the amount of PM10 generated during manufacturing before application of any pollution control technology. Knauf Resp. at 22. Thus, Knauf attributes the different emission rates among various facilities to the underlying process technologies. AQMD and Knauf also point out that even the emission limits for the two CertainTeed facilities vary widely. The Chowchilla facility has a PM10 limit of approximately 1.0 lb/ton. In contrast, the PM10 limits for the Kansas City facility are 2.02 lbs/ton for PM10 and 3.63 lbs/ton for PM (as TSP). Moreover, the Kansas City permit, with the higher emission limits, is the more recent permit decision.29 AQMD 98–19 Resp. at 4; Knauf Resp. at 25. 28 Petition Nos. 98–3 through 98–6, and 98–16 through 98–19 challenge the BACT determination for PM 10. 29 The PSD permit for CertainTeed’s facility in Kansas City, KS was issued on May 23, 1997. The permit for the Chowchilla, CA facility dates back to November 1983, with modifications in 1986, 1992, and 1995. Petition No. 98-19 atts. 5 & 6. VOLUME 8 187-274/Sections06 138 10/9/01 2:25 PM Page 138 ENVIRONMENTAL ADMINISTRATIVE DECISIONS AQMD adds that the PM10 emission limit in this case is based on the WEP vendor’s performance guarantee, which in turn depends on the nature of the exhaust stream entering the WEP. AQMD 98–19 Resp. at 2. AQMD claims that it cannot justify an emission limit lower than what the pollution control technology vendor can supply. Id. at 2, 5. Proposals from three different WEP vendors attached to AQMD’s response each indicate approximately the same guaranteed emission limit.30 Both Knauf and AQMD repeat the suggestion that Region IX is seeking to require Knauf to redefine its source. AQMD 98–19 Resp. at 6; Knauf Resp. at 30–31. AQMD and Knauf believe that the only way to achieve the CertainTeed emission limits would be to apply CertainTeed’s process technology, and such a requirement would amount to redefinition of the source, even if Knauf could obtain CertainTeed’s proprietary technology. In response to Region IX’s suggestion that Knauf should be required to show that stricter emission limits are technically infeasible, AQMD states that such a showing cannot be performed because the manufacturing techniques and process technologies used by CertainTeed are unknown. AQMD 98–19 Resp. at 6. AQMD also represents that it previously requested Knauf to “respond to the possibility of achieving the lowest achievable emission rate of approximately 1.0 lb PM10 per ton of glass pulled.” Id. at 3. Knauf responded that in light of the proprietary processes at CertainTeed, the specific characteristics of Knauf’s own process, and the performance guarantees from Knauf’s WEP vendors, the emission rate would have to be 5.37 lbs/ton. Id. With regard to the differences in control technology configuration at CertainTeed’s Kansas City facility and the proposed Knauf plant, both AQMD and Knauf reject the concept that CertainTeed’s lower emission limits are due to the fact that CertainTeed has three WEPs on its forming section as compared to one WEP for Knauf. AQMD states that CertainTeed splits the air flow from its forming section and each of the three WEPs treats a portion of that flow. “[A]ll of the WEPs are not operating to reduce emissions from one source.” AQMD 98–5 Resp. at 3. Knauf plans to use a single, larger WEP that receives combined air flow. Id. Knauf claims that the WEP design for its plant is the equivalent of two parallel WEPs. Knauf Resp. at 35. In addition, the proposed Knauf facility will use scrubbers. Id. Again, AQMD and Knauf attribute the difference in emission limits to the differences in the underlying processes rather than the WEP configuration. AQMD 98–3 Resp. at 2; Knauf Resp. at 35. Emission limit guarantees were expressed as WEP outlet loadings of 0.015 grains/scfd. 30 VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 139 KNAUF FIBER GLASS, GMBH 139 In sum, AQMD and Knauf’s responses to the BACT challenges focus on the inherent differences between the CertainTeed and Knauf manufacturing processes. The differences are allegedly so great, that despite the fact that both companies are operating (or planning to operate) rotary spin manufacturing plants with substantially the same pollution control technology (WEPs or scrubbers plus a WEP), the emission limits for one company cannot be considered applicable to the other. EPA’s history of regulating the fiberglass industry lends some support to AQMD and Knauf’s position. For example, when EPA was proposing New Source Performance Standards (“NSPS”) for the fiberglass manufacturing industry in the mid-1980s, the Agency addressed the fact that certain plants used process modifications in lieu of or in addition to add-on pollution control technologies: [B]ecause of the differences in the process design and operation employed among firms, and in the products produced by different firms (and in some cases by different plants within the same firm), the Agency does not have a basis upon which to conclude that a process modification which has been demonstrated at one plant will necessarily be applicable to another plant. Therefore, the Administrator has determined that process modifications are not an appropriate candidate [best demonstrated technology] for this industry. 49 Fed. Reg. 4590, 4593 (Feb. 7, 1984). In the preamble to the final NSPS, the Agency furthered explained why process modifications did not form the basis for the NSPS standard, even though such modifications could result in lower emissions: The Agency agrees that use of [process] modifications, alone or in combination with add-on control devices, can achieve lower emissions than those allowed by the standard. However, process modifications are considered confidential by the companies that comprise the fiberglass industry and are not generally available to the entire industry. 50 Fed. Reg. 7694, 7696 (Feb. 25, 1985). In the course of the NSPS rulemaking, EPA rejected more stringent PM emission limits because such limits would be based on confidential process modifications. See 49 Fed. Reg. at 4597. VOLUME 8 187-274/Sections06 140 10/9/01 2:25 PM Page 140 ENVIRONMENTAL ADMINISTRATIVE DECISIONS More recently, EPA proposed a National Emissions Standards for Hazardous Air Pollutants (“NESHAP”) rule for the fiberglass manufacturing industry. 62 Fed. Reg. 15,228 (Mar. 31, 1997). This proposed rule would apply to hazardous air pollutant emissions rather than PM emissions from the forming process, but the issue of proprietary process technology was also addressed in this context. In selecting a formaldehyde emission standard, EPA eliminated from consideration the emission level achieved at one plant because “[t]he emission level * * * is from a proprietary forming process not available to the rest of the industry.” Id. at 15,242. From this background and the arguments presented in this case, we conclude that the fiberglass manufacturing process is indeed characterized by specialized processes and raw material mixtures that vary from firm to firm and product to product. Notwithstanding these differences, the pollution control devices that individual companies apply are legitimate avenues of inquiry, which must be explored fully. It is therefore appropriate to look at control technologies and emission limits at other rotary spin plants when searching for potential control options in the first step of the BACT determination. We are unpersuaded by Knauf’s argument that the only facility within the fiberglass manufacturing industry that is suitable for comparison to the proposed COSL facility is Knauf’s plant in Lanett, Alabama. While the Lanett plant may well be the most similar to the proposed plant because Knauf intends to use the Lanett process technology in Shasta Lake, that fact should not foreclose Knauf’s obligation to look at its competitors’ plants in identifying potential control options. The approach used by Knauf has the potential to circumvent the purpose of BACT, which is to promote use of the best control technologies as widely as possible. If a company can claim that the only facilities similar to a proposed project are its own facilities, this objective of the BACT program would not be fulfilled. Petitioners raise legitimate questions about how the particular control technology and emission limits for Knauf were selected. Based on the record information and arguments made on appeal, we cannot determine if the particular control technology and emission limit selected for this facility truly qualify as BACT. Answers to still open questions are needed in order to assess AQMD’s BACT determination. For example, what control technologies are in use on the forming sections of the Owens Corning and Schuller fiberglass plants reportedly evaluated by Knauf and AQMD? What are their emission limits for PM10? How did Knauf and AQMD select the number of PM10 control devices and their configuration? Would a different configuration, similar to what is being used at VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 141 KNAUF FIBER GLASS, GMBH 141 CertainTeed’s facilities, result in a different level of emissions reduction?31 If WEPs can be designed in a variety of sizes, how did Knauf and AQMD choose the size of the WEP for this facility? As the record stands, we cannot find that AQMD adequately considered the comments received on the BACT issue. AQMD’s response to comments and the petitions for review have not convinced us that the particular design of the control technology (i.e., size and configuration of pollution control equipment) or the selected PM10 emission limit necessarily constitutes BACT. We are remanding the BACT determination in the interest of obtaining the benefit of further analysis on this issue. We are ordering AQMD to prepare a supplemental BACT analysis for this proposed facility. We suggest that the supplemental analysis employ the format described in the NSR Manual guidance. We would therefore expect to see a list of all control options considered, including identification of the information source for each option. At a minimum, it appears that such a list would include Knauf’s Lanett, Alabama facility, the three California fiberglass facilities discussed in the permit evaluation document, and CertainTeed’s Kansas City, Kansas facility.32 A technical feasibility analysis should be documented for each identified control option for which there is an infeasibility claim. Conclusions that one or more of the options are not available or applicable need to be justified. After the technical feasibility analysis, remaining control options should be listed in order of stringency, with the most stringent option first. AQMD should also present its conclusions regarding the collateral environmental impacts of the top control option and any necessary analysis of other collateral impacts (i.e., energy or economic). If the top option is rejected, the collateral impacts of each subsequent control option should be documented. The purpose of this grant of review is to provide AQMD an opportunity to correct some serious deficiencies in the record pertaining to the 31 In response to the petitions for review, Knauf supplied an engineering and cost analysis for expanding the size of the WEP designed for the Shasta Lake facility. Knauf Resp. Ex. 4. The analysis compares the PM10 removal and capital costs for the WEP as designed, a 50% larger WEP, and a 100% larger WEP. Larger WEPs can achieve greater removal efficiencies by increasing treatment time for an exhaust gas stream. Id. The WEP as designed removes approximately 238 tons of particulate per year at a cost of $3,344,000. The analysis shows that a 50% larger WEP will remove an additional 11.9 tons of particulate per year at an additional capital cost of $1,361,000. A 100% larger WEP can remove 19.1 additional tons of particulate at an additional cost of $2,721,000. Id. A similar analysis could have provided a basis for comparing the WEP as designed with a multiple WEP design, as used at CertainTeed. 32 These are the facilities for which there is some documentation in the record. See supra Table 1. To the extent that other facilities or information sources were considered or are considered in the course of the remand, those should also be included in the list. VOLUME 8 187-274/Sections06 142 10/9/01 2:25 PM Page 142 ENVIRONMENTAL ADMINISTRATIVE DECISIONS BACT determination. The petitioners’ arguments regarding WEP design and the PM10 emission limit are legitimate questions that were rejected without adequate explanation. Thus, the PM10 BACT determination for the proposed Knauf facility is clearly erroneous because the analysis of control options was incomplete. Incomplete BACT analyses are grounds for remand. See In re Masonite Corp., 5 E.A.D. 551, 568–69, 572 (EAB 1994) (remand of PSD permit in light of incomplete analyses in BACT determination); In re Brooklyn Navy Yard Resource Recovery Facility, 3 E.A.D. 867, 875 (Adm’r 1992) (PSD permit remanded for failure to adequately consider viability of measures suggested by petitioner for reduction of NOX emissions). In ordering a remand on BACT, it is also appropriate to provide a few clarifying comments relating to particular issues raised on appeal. First, Petition No. 98–16 suggests that Knauf should obtain and employ CertainTeed’s manufacturing process technology in lieu of its own. While this may be included as one of the alternatives in the first step of the BACT analysis, this option may well turn out to be technically infeasible. We acknowledge that there are differences in features of the manufacturing process among companies, and that such differences have historically been treated as proprietary and confidential.33 Process technologies that are treated as proprietary and are not commercially available may be considered technically infeasible and eliminated from the BACT consideration process. 34 Individual permit applicants and permitting authorities ordinarily should not have to negotiate with owners of proprietary process technologies in order to satisfy BACT requirements. 33 We accept the Agency’s characterization of confidential and proprietary process technology used by the fiberglass industry as articulated in the standard setting context. The national standards (i.e., NSPS and NESHAPs) are the best tools for effecting industry wide adoption of lower emitting processes. The program offices in charge of developing such standards are better equipped than we are to assess confidentiality claims regarding process technology. 34 We believe that the commercial availability test is the proper way to deal with proprietary and confidential technologies rather than an inquiry into redefining the source. A request to redefine a source presumes that an alternative (and lower-polluting) process is available. Here, it is not clear that lower-polluting processes are available to Knauf (although that is a legitimate area of inquiry in preparing a supplemental BACT analysis on remand). Even if such processes are not available, however, Knauf and AQMD are not exempt from fully investigating available add-on pollution controls. We reject AQMD and Knauf’s argument regarding redefining the source to the extent that they seek to avoid performing and/or documenting a BACT analysis that considers pollution control options used by their competitors. While we are not requiring Knauf to pursue its competitors’ trade secrets, we do expect serious consideration of pollution control designs for other facilities that are a matter of public record. VOLUME 8 187-274/Sections06 10/9/01 2:25 PM Page 143 KNAUF FIBER GLASS, GMBH 143 Second, at some point in the BACT analysis, AQMD should take into account and discuss any difference in the numerical emission limits due to the application of a particular control option to the Knauf plant. A particular control technology may be available and applicable but the specific numerical emission limit achievable by Knauf may not be the same limitation achieved elsewhere. To the extent that the emission limit difference is a matter of technical feasibility, this issue falls under step two of the BACT analysis as outlined in the NSR Manual. To the extent that a different limit is justified due to collateral energy, economic, or environmental considerations, the issue falls under step four. Due to characteristics of individual plant processes, we recognize that application of identical technology may not yield identical emission limits. However, the BACT analysis should contain a comparison of these limits and provide an explanation for the differences. The conclusion of AQMD’s supplemental response regarding BACT may be that the emission limits and control technology currently required by the permit still constitute BACT. Alternatively, AQM