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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 99-1855 <br> <br>                  SUR CONTRA LA CONTAMINACI N, <br> <br>                           Petitioner, <br> <br>                                v. <br> <br>                 ENVIRONMENTAL PROTECTION AGENCY, <br> <br>                           Respondent, <br> <br>                               and <br> <br>                      AES PUERTO RICO L.P., <br> <br>                           Intervenor. <br> <br>                       ____________________ <br> <br>                 <br>              PETITION FOR REVIEW OF A FINAL ACTION <br>              OF THE ENVIRONMENTAL PROTECTION AGENCY <br> <br>                       ____________________ <br>                      <br>                              Before <br> <br>                     Lynch, Circuit Judge, <br>                Campbell, Senior Circuit Judge, <br>                   and Stahl, Circuit Judge. <br>                                 <br>                       ____________________ <br> <br> <br>  Pedro J. Varela for petitioner. <br>  Michele L. Walter, with whom Lois J. Schiffer, Assistant <br>Attorney General, Environment and Natural Resources Division, Alice <br>L. Mattice, Attorney, Environmental Defense Section, U.S. <br>Department of Justice, M. Lea Anderson, Attorney, Office of General <br>Counsel, U.S. Environmental Protection Agency, and Joseph A. <br>Siegel, Office of Regional Counsel, U.S. Environmental Protection <br>Agency, Region II, were on brief, for respondent. <br>  Deborah E. Jennings, with whom Monica D. Gibson and Piper <br>Marbury Rudnick & Wolfe LLP were on brief, for intervenor. <br> <br>

                       ____________________ <br>                      <br> <br>                       ____________________

  LYNCH, Circuit Judge.  Sur Contra la Contaminacin <br>(SURCCo), a community organization made up of residents of Guayama, <br>Puerto Rico, challenges a Prevention of Significant Deterioration <br>(PSD) permit, issued by the Environmental Protection Agency, that <br>authorizes construction of a power plant in the ward of Jobos <br>within that municipality.  The group contends that the Agency's <br>decision to grant the permit was arbitrary and capricious and in <br>violation of the Executive Order on Environmental Justice.  See <br>Federal Actions To Address Environmental Justice in Minority <br>Populations and Low-Income Populations, Exec. Order No. 12,898, 59 <br>Fed. Reg. 7629 (1994).  The Environmental Appeals Board carefully <br>considered the challenge and denied it.  See In re AES Puerto Rico, <br>L.P., 29 Envtl. L. Rep. (Envtl. L. Inst.) 41,132 (Envtl. App. Bd. <br>May 27, 1999).  For the following reasons, we, too, reject the <br>challenge.  <br>                                I. <br>  On January 10, 1996, Region II of the EPA received a PSD <br>permit application from AES Puerto Rico L.P. for a 454-megawatt <br>coal-fired, steam-electric cogeneration power plant it wished to <br>build in Guayama.  The permit was required under the Clean Air Act <br>because the plant would be a major new stationary source of certain <br>pollutants, including sulfur dioxide and fine particulate matter.  <br>See 42 U.S.C.  7475, 7479; 40 C.F.R.  52.21(b)(1)(i)(a).  PSD <br>permits are designed to insure that covered pollutants emitted by <br>new or modified sources do not exceed the allowable increments of <br>additional air pollutants (the increments) or lead to the exceeding <br>of the National Ambient Air Quality Standards (the Standards) in <br>areas that have been designated "attainment" or "unclassifiable."  <br>See 42 U.S.C.  7471, 7473.  The PSD program represents a <br>balancing of "economic growth" with the "preservation of existing <br>clean air resources."  Id.  7470(3). <br>  Before the EPA grants a PSD permit, the owner or operator <br>of the proposed facility must satisfy certain prerequisites, two of <br>which are of importance here.  First, a permit will be issued only <br>if the owner "demonstrates . . . that emissions from construction <br>or operation of such facility will not cause, or contribute to, air <br>pollution in excess" of the increments or the Standards.  42 U.S.C. <br> 7475(a)(3); 40 C.F.R.  52.21(k).  This is accomplished through <br>air quality modeling and ambient air monitoring, see 40 C.F.R. <br> 52.21(l), (m), though the extensiveness of these two inquiries <br>can vary.  According to the EPA's draft New Source Review Workshop <br>Manual, "a full impact analysis," including "multi-source <br>modeling," i.e., air quality modeling that takes into account the <br>proposed source, existing sources, and residential, commercial, and <br>industrial growth that accompanies the new source, for a particular <br>pollutant is not required "when emissions of that pollutant from a <br>proposed source . . . would not increase ambient concentrations by <br>more than prescribed significant ambient levels."  Further, the EPA <br>may waive the air monitoring requirement if "[t]he emissions <br>increase of the pollutant from the new source . . . would cause, in <br>any area, air quality impacts less than" certain de minimis <br>monitoring levels.  40 C.F.R.  52.21(i)(8)(i).  <br>  Here, AES used EPA-approved air quality modeling <br>techniques to predict emissions of both sulfur dioxide and fine <br>particulate matter from the proposed plant.  The predicted sulfur <br>dioxide emissions were all below the thresholds, though the one for <br>the twenty-four hour averaging time came very close to the <br>significant impact level (.03 micrograms per cubic meter below the <br>threshold).  As a result, the Region did not require AES to conduct <br>a full impact analysis and exempted AES from conducting <br>preconstruction ambient air monitoring for sulfur dioxide.  The <br>predicted fine particulate matter emissions, however, were above <br>the designated significant impact levels and de minimis monitoring <br>levels, so the EPA required AES to conduct a full impact analysis <br>and ambient air monitoring of that pollutant.  Both of these <br>analyses were conducted and both indicated that the proposed plant <br>would not cause or contribute to a violation of the Standards or <br>the PSD increments.  <br>  Second, a permit will not be issued unless the "proposed <br>facility is subject to the best available control technology <br>[(BACT)] for each pollutant subject to regulation."  42 U.S.C. <br> 7475(a)(4).  BACT "means an emissions limitation . . . based on <br>the maximum degree of reduction for each pollutant subject to <br>regulation under [the] Act which would be emitted from any proposed <br>major stationary source . . . which the Administrator, on a case- <br>by-case basis, taking into account energy, environmental, and <br>economic impacts and other costs, determines is achievable for such <br>source . . . through application of production processes or <br>available methods, systems, and techniques . . . ."  40 C.F.R. <br> 52.21(b)(12). <br>  AES proposed a novel combination of three proven control <br>technologies: circulating fluidized bed boilers with limestone <br>injection; low sulfur coal; and a dry scrubber.  The company claims <br>that this combination will lead to "one of the world's cleanest <br>coal-fired power plants."  Though this combination has not been <br>used before, the EPA believes that this control technique is <br>"technically feasible" and "will result in a real decrease in <br>impacts."  It, therefore, accepted the combined technologies as the <br>BACT.  <br>  On April 4, 1997, the Region published a notice that <br>announced its intention to issue the PSD permit to AES.  As <br>required, the Region conducted public hearings and received written <br>submissions, which it reviewed.  See 42 U.S.C.  7470(5), <br>7475(a)(2).  In response to the community's concerns, the EPA <br>conditioned the permit on AES's conducting post-permit multi-source <br>modeling and ambient air monitoring of sulfur dioxide, even though <br>these tests were not required by the Act or the regulations.  <br>Also, the EPA prepared an environmental justice analysis.  See <br>Exec. Order No. 12,898, 59 Fed. Reg. 7629 (1994).  On September 18, <br>1998, the Region issued the PSD permit.  A number of individuals <br>and groups, including SURCCo, challenged the petition before the <br>Environmental Appeals Board.  The Board, on May 27, 1999, denied <br>these petitions for review.  See In re AES, 29 Envtl. L. Rep. at <br>41,132.  SURCCo now brings this petition. <br>                               II. <br>  We have jurisdiction to review this petition.  See 42 <br>U.S.C.  7607(b)(1); 40 C.F.R.  124.19(f)(1).  Our review of the <br>permit is governed by the Administrative Procedure Act's "arbitrary <br>and capricious" standard.  See 5 U.S.C.  706(2)(A); Pan Am. Grain <br>Mfg. Co. v. U.S. EPA, 95 F.3d 101, 105 (1st Cir. 1996) (reviewing <br>state implementation plan); Adams v. U.S. EPA, 38 F.3d 43, 49 (1st <br>Cir. 1994) (reviewing NPDES permit); Citizens for Clean Air v. U.S. <br>EPA, 959 F.2d 839, 845 (9th Cir. 1992) (reviewing PSD permit). <br>  SURCCo's petition focuses on purported technical errors <br>in the air quality analyses of sulfur dioxide and fine particulate <br>matter and on assertions that the EPA should have applied its <br>discretion differently.  SURCCo does not directly challenge the PSD <br>permit regulations or Guayama's attainment designation.  The EPA, <br>assisted by AES, defends the permit. <br>A. Sulfur Dioxide <br>  SURCCo first alleges that the EPA should have required <br>AES to conduct a full impact analysis of sulfur dioxide emissions.  <br>AES's modeled impact analysis for the 24-hour averaging time for <br>sulfur dioxide emissions (4.97 micrograms per cubic meter) was <br>minutely below the significant impact level (5.00 micrograms per <br>cubic meter).  SURCCo contends that the EPA should have ordered a <br>full impact analysis before granting the final permit because: a) <br>the EPA accepted "a combination of controls which have never been <br>used before," and b) to achieve the emissions limit, AES must <br>achieve a 99% efficiency rate.  That is, because the efficiency of <br>this combination of technologies is untested, the EPA should have <br>ordered a full impact study despite the fact that the modeled <br>impact was below the significant impact level that would <br>automatically trigger further testing.  Further, SURCCo says that <br>evidence it submitted -- which the EPA rejected -- contradicted <br>AES's impact analysis.  The EPA says, in response, that "the permit <br>requires AES to limit the facility's emission rate to extremely low <br>levels through an innovative combination of state-of-the-art <br>control technologies."  EPA also says that AES used appropriate <br>models while "the modeling on which SURCCo relies applied the <br>models simplistically and made unrealistic assumptions."  <br>  SURCCo has provided no evidence of arbitrariness or <br>capriciousness in the EPA's determination that AES's proposed <br>controls will achieve BACT, even though the combination of controls <br>is novel.  Each of these three components has been tested and used; <br>only their combination is new.  It was rational for the Agency to <br>prefer its own model, to reject SURCCo's proposed alternative <br>modeling that allegedly showed sulfur dioxide emissions above the <br>threshold levels, and to accept, instead, AES's modeling. As other <br>courts have held, the Agency's choice of a model will be sustained <br>if it bears a "rational relationship to the characteristics of the <br>data to which it is applied."  Appalachian Power Co. v. EPA, 135 <br>F.3d 791, 802 (D.C. Cir. 1998) (computer models); see also Pan Am. <br>Grain, 95 F.3d at 105.  The Agency was, thus, within its <br>discretion, under the regulations, to exempt AES from conducting a <br>full impact analysis. <br>  SURCCo next alleges that the EPA erred in including in <br>its permit a condition that a full impact analysis be conducted <br>after the issuance of the permit.  This is, in a sense, an odd <br>argument for SURCCo to make, but it is made in furtherance of the <br>plea that a full impact analysis be required before, not after, the <br>permit issues.  A post-permit analysis will not do, SURCCo says, <br>because this denies SURCCo the right to comment on data collected <br>in that analysis.  Without accepting the premise that a community <br>group has no mechanism at all to comment, we note that there is no <br>legal requirement that there be public comment for a post-permit <br>analysis.  Indeed, the regulations allow the EPA to require post- <br>operation monitoring.  See 40 C.F.R.  52.21(m)(2).  Further, the <br>analysis must be conducted in accordance with EPA models and <br>protocols, see 40 C.F.R.  52.21(l)(1), which have been subject to <br>nationwide public review. <br>  SURRCo next contends that the EPA relied on outdated -- <br>and perhaps incorrect -- air quality data to evaluate current air <br>quality conditions in Guayama.  It claims that AES should have <br>relied on more recent data collected by the Puerto Rico <br>Environmental Quality Board in 1990.  Further, before the EPA <br>issued this permit, it should have conducted ambient air quality <br>analysis (or, alternatively, should have relied on more recent <br>data) in order to determine if Guayama is, in fact, in attainment.  <br>Failure to have done so, SURCCO claims, was error.  The EPA replies <br>that it had no "reason to question the continuing validity of its <br>conclusion that total sulfur dioxide emissions from all sources in <br>the area were well below the [Standards], because no major new <br>sources had been constructed in the area since" 1983, when the EPA <br>last determined that the air quality in the area was below the <br>Standards.  The EPA also states that the Environmental Quality <br>Board's data would have been rejected if it had been presented.  <br>Finally, the EPA says that ambient air monitoring is required once <br>the facility is in operation.  In this case, there is no legal <br>requirement that ambient air monitoring should have been done prior <br>to the issuance of the permit, nor is there evidence that casts <br>doubt on the EPA's conclusion that current air quality is within <br>the Standards. <br>B. Fine Particulate Matter <br>  SURCCo contends that AES's fine particulate matter <br>analysis was flawed because AES used old and unrepresentative data <br>and failed to use more recent data that was available to it before <br>it issued the permit.  They contend that if the more recent data <br>were used the analysis would show that the fine particulate matter <br>standard would be exceeded.  The EPA, in response, contends that <br>AES complied with all of the modeling and monitoring requirements <br>and used the most recent data available to it prior to its permit <br>application.  The regulations do not require AES to consider post- <br>application data.  See 40 C.F.R.  52.21(m)(1)(iv) (background <br>monitoring data must "represent at least the year preceding receipt <br>of the [permit] application").  While some different fact patterns <br>(e.g., a great delay) might give SURCCo's argument more weight, the <br>facts here do not.  The EPA and AES present rational evidence that <br>the more recent data, on which SURCCo relies, are unrepresentative <br>and when corrected actually confirm AES's analysis that the <br>standards will not be exceeded.  The EPA also properly explained <br>why it modified the permit to include a revised BACT limit for fine <br>particulate matter.  Finally, the EPA also acted reasonably when it <br>asked AES (after the public comment period) to submit additional <br>information to take account of this revised limit.  See 40 C.F.R. <br> 124.17(b). <br>                               III. <br>  SURCCo asks us, as well, to revoke the permit because of <br>alleged violations of the President's Executive Order on <br>Environmental Justice.  See Exec. Order No. 12,898, 59 Fed. Reg. <br>7629 (1994).  The Order requires that, "[t]o the greatest extent <br>practicable and permitted by law, . . . each Federal agency shall <br>make achieving environmental justice part of its mission by <br>identifying and addressing, as appropriate, disproportionately high <br>and adverse human health or environmental effects of its programs, <br>policies, and activities on minority populations and low-income <br>populations."  Id.  1-101, 59 Fed. Reg. at 7629. <br>  The Order, however, was "intended only to improve the <br>internal management of the executive branch"; by its own words, the <br>order "shall not be construed to create any right to judicial <br>review."  Id.  6-609, 59 Fed. Reg.  at 7632-33.  We therefore <br>cannot review the permit on this basis.  See Morongo Band of <br>Mission Indians v. FAA, 161 F.3d 569, 575 (9th Cir. 1998); see also <br>Air Trans. Ass'n of Am. v. FAA, 169 F.3d 1, 8-9 (D.C. Cir. 1999). <br>  We have considered SURCCo's other arguments, as well, and <br>conclude that they are without merit. <br>                               IV. <br>  While the residents of Guayama may, indeed, have valid <br>concerns about the air quality in their municipality, and in <br>particular in Jobos, SURCCo's petition presents no basis to <br>conclude that Region II's grant of a PSD permit to AES was <br>arbitrary or capricious.  As this court said in Pan American Grain <br>Manufacturing Co., "[i]n each instance the EPA presented reasoned <br>explanations . . . notwithstanding petitioner's objections.  <br>Moreover, petitioner's criticisms . . . involve areas in which <br>EPA's expertise is heavily implicated, and we may not substitute <br>our judgment for that of the Administrator."  Pan Am. Grain, 95 <br>F.3d at 105 (internal quotation marks and citations omitted).  <br>SURCCo's concerns, insofar as they relate to Guayama's attainment <br>designation, Puerto Rico's State Implementation Plan, emissions <br>from other facilities in the area, or other matters, do not effect <br>the validity of the permit and should be presented in other fora. <br>SURCCo's involvement was nonetheless of value to its objectives.  <br>That the permit issued here is particularly stringent may be due in <br>large part to the participation of the area residents. <br>  Petition denied.</pre>

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