32010 that the nitrogen oxide emission limits for the drillship
’s generators could not be achieved
using the technology that Shell proposed and EPA approved for the current permit.
Shell didnot come forth with this information for nearly two years, however, and neither EPA nor thepublic was apprised during the 2011 permit proceedings of any need to revisit the BACTdetermination for the
. Shell concedes in its application
, as it must, that ―the post
offered an opportunity to request emission limit revisions.‖
Having chosen toforego the decision-making process required for a new BACT determination in 2011, Shell mustbe required to forego operations until the agency and public review process mandated by the Act
and EPA’s implementing regulations
for a new or modified permit is complete. To not do so isto undercut the fundamental policy of the air quality control program that adequate permits be inplace before emissions can occur, and would create a dangerous precedent encouraging similartactics from other companies in the oil and gas and other industries.Third,
Shell’s permit must be revoked because,
contrary to Shell
assertions in its permitapplication, the emissions limits and pollution controls that the company proposes for adoptionin a new or modified permit are not adequate to assure compliance with all ambient standardsthat will be applicable to such a permit. Under section 165 of the Act, the owner or operator of asource seeking a PSD permit must demonstrate that its operations will not cause or contribute toa violation of a national ambient air quality standard or increment.
applicationindicates that the revised permit conditions it seeks are insufficient to prevent violations of theallowable increment for fine particulate matter pollution. According to
own modeling,under the terms proposed in its permit application, emissions from the
and itsassociated vessels will increase 24-hour fine particulate matter concentrations by more than 12
This increase exceeds the now-effective 24-hour fine particulate matter increment limit
of 9 μg/m
Shell’s current permit was n
ot subject to the fine particulate matter increment because it wasissued on September 19, 2011, just one month prior to the effective date of the new standard onOctober 20, 2011.
However, a decision by EPA to issue a new or modified permit will occur
after the increment’s effective date.
It is well-established that
―permitting and licensing
decisions of regulatory agencies must reflect the law in effect at the time the agency makes a
Shell Application at 5.
Shell Application at 2.
42 U.S.C. § 7475(a)(3); 40 C.F.R. § 52.21(k).
Shell Application, Appendix I, at 10, Table 2a (indicating ―Max. Modeled Shell Conc.Without Background‖ of 12.7 μg/m
see also id
. at 44 (asserting that Shell will comply withcertain coarse and fine particulate matter standards but making no representation of compliancewith the 24-hour fine particulate matter increment).
Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5Micrometers (PM2.5)
Increments, Significant Impact Levels (SILs) and Significant MonitoringConcentration, 75 Fed. Reg. 64,864, 64,865 (Oct. 20, 2010).
EPA, Supplemental Response to Comments for OCS PSD Permits Noble Discoverer
Drillship (―Supplemental Response to Comments‖) (Sept. 19, 2011) at 99 (―Because these
permits are issued prior to October 20, 2011, there is no requirement that the air quality analysis
… must include a demonstration with respect to the PM2.5 increments.‖).