COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Humphreys and Senior Judge Clements
Argued at Richmond, Virginia
APPALACHIAN VOICES,
CHESAPEAKE CLIMATE ACTION NETWORK,
SIERRA CLUB AND SOUTHERN APPALACHIAN
MOUNTAIN STEWARDS
OPINION BY
v. Record No. 2199-09-2 JUDGE JEAN HARRISON CLEMENTS
MAY 25, 2010
STATE AIR POLLUTION CONTROL BOARD AND
VIRGINIA ELECTRIC AND POWER COMPANY
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Caleb A. Jaffe (John T. Suttles; Southern Environmental Law Center,
on briefs), for appellants.
Kerri L. Nicholas, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General; Roger L. Chaffe, Senior Assistant
Attorney General, on brief), for appellee State Air Pollution Control
Board.
Timothy G. Hayes (Kevin J. Finto; Miranda R. Yost; Andrea W.
Wortzel; Hunton & Williams LLP, on brief), for appellee Virginia
Electric and Power Company.
Appalachian Voices, Chesapeake Climate Action Network, Sierra Club, and Southern
Appalachian Mountain Stewards (collectively “the Coalition”) appeal a decision of the circuit court
affirming a decision of the State Air Pollution Control Board (the Board) to issue a permit pursuant
to the Prevention of Significant Deterioration Program (PSD permit) to Virginia Electric and Power
Company (Dominion) to build and operate a coal-fired electric generating plant in Wise County,
Virginia. On appeal, the Coalition contends the circuit court erred by: (1) concluding that carbon
dioxide (CO2) is not a pollutant “subject to regulation” by the Board and under the federal Clean Air
Act (CAA); and (2) approving the Board’s use of the more coarse particulate matter pollutant, PM10,
as a surrogate for the regulation and control of the more fine particulate matter pollutant, PM2.5,
without demonstrating that it was reasonable to do so. We affirm the decision of the circuit court.
BACKGROUND
In accordance with familiar principles of appellate review, “we review the facts in the light
most favorable to sustaining the Board’s action.” Crutchfield v. State Water Control Bd., 45
Va. App. 546, 553-54, 612 S.E.2d 249, 253 (2005) (citing Atkinson v. Virginia Alcohol Beverage
Control Comm’n, 1 Va. App. 172, 176, 336 S.E.2d 527, 530 (1985)).
The CAA, 42 U.S.C. § 7401 et seq., requires applicants seeking to construct major sources
of air pollution in attainment areas, such as Dominion’s proposed coal-fired facility, to undergo
New Source Review (NSR) and obtain a PSD permit prior to construction. 42 U.S.C. § 7475. The
PSD permit includes limitations or conditions to ensure that emissions from the permitted facility:
(1) will not cause or contribute to violations of the National Ambient Air Quality Standards
(NAAQS) established by the CAA; and (2) will be controlled sufficiently to maintain existing air
quality in the surrounding region. Although the PSD program is federal law, the Department of
Environmental Quality (DEQ) and the Board have authority to issue PSD permits because Virginia
has an EPA approved “State Implementation Plan” (SIP), giving the Commonwealth primary
responsibility to administer the PSD program. See Code § 10.1-1322 et seq.
As part of the permitting process, DEQ must conduct an air quality analysis and control
technology review. PSD permits also contain emissions limits for certain pollutants that represent
those obtainable by the use of best available control technology (BACT) as determined for the
source. 42 U.S.C. § 7475(a)(4). BACT means, in pertinent part: “[a]n emissions limitation . . .
based on the maximum degree of reduction for each regulated NSR pollutant that would be emitted
from any proposed major stationary source . . . .” 9 VAC 5-80-1615 (emphasis added).
-2-
In July 2006, Dominion filed its application for the PSD permit to build and operate a
coal-fired electric generating facility, the Virginia City Hybrid Energy Center (VCHEC), in order to
meet current and projected electricity demand. DEQ published the first draft of the permit in
January 2008 with supporting engineering analysis. Prior to the issuance of the final permit,
Dominion also undertook studies, modeling, analysis and technology, review. During the public
comment period, the Coalition raised several concerns about the draft permit. On June 25, 2008, the
Board approved the PSD permit, which was issued on June 30, 2008.
The Coalition filed a petition for appeal in the circuit court in August 2008, raising several
challenges to the Board’s approval of the PSD permit. The Coalition argued that the PSD permit
should have included emission limits for CO2 and the Board erred by failing to require BACT
analysis for CO2. DEQ and Dominion responded that neither state nor federal law requires
regulation of CO2 and, at the time of the permitting process, there was no guidance for the
development of CO2 emissions standards. The circuit court agreed with DEQ and Dominion,
finding there was no legal requirement that the Board conduct a BACT analysis for CO2 because
CO2 is not subject to regulation under either federal or state law.
The Coalition also argued to the circuit court that the Board improperly relied on guidance
from the Environmental Protection Agency (EPA) relating to the use of PM10 as a surrogate for
PM2.5.
EPA has established NAAQS for both PM10 and PM2.5. These are standards for particulate
matter (soot) less than 10 micrometers in diameter, PM10, and less than 2.5 micrometers in diameter,
PM2.5. The Coalition asserted to the circuit court that the PM2.5 limit in the PSD permit was
unlawful because the Board relied upon antiquated EPA guidance relating to the use of PM10 as a
surrogate for PM2.5. The Coalition argued that the Board should have applied a BACT analysis to
determine whether the surrogacy was appropriate in this particular case.
-3-
In response, DEQ and Dominion asserted that DEQ and the Board consistently followed
EPA’s recommended procedure and DEQ’s own guidance for implementing the procedure for using
PM10 as a surrogate for PM2.5. In addition, Dominion provided modeling that demonstrated
compliance with the PM2.5 NAAQS. Moreover, the Board included a provision in the PSD permit
requiring review of the existing permit emission limit for PM2.5 when the final PM2.5
implementation guidance is promulgated by EPA. The PSD permit also requires PM2.5 ambient air
quality monitoring to begin upon commercial start up of the facility.
The circuit court ruled that there was substantial evidence in the record to support the
Board’s approach to controlling PM2.5 emissions “for the reasons stated in the briefs and oral
arguments” of the Board and Dominion.
By order entered on September 2, 2009, the circuit court affirmed the decision of the Board
to issue the PSD permit. The Coalition appealed the circuit court’s decision to this Court.
STANDARD OF REVIEW FOR CARBON DIOXIDE ISSUE
Judicial review of the Board’s decision to issue the permit is governed by the Virginia
Administrative Process Act. Code § 2.2-4000 et seq. The burden is on the Coalition to designate
and demonstrate an error of law for the court to review. Code § 2.2-4027.
Questions of law are reviewed de novo. See Clark v. Marine Res. Comm’n, 55 Va. App.
328, 334-35, 685 S.E.2d 863, 866 (2009) (citing Moreau v. Fuller, 276 Va. 127, 133, 661 S.E.2d
841, 845 (2008)). “[J]udicial review of a ‘legal issue’ requires ‘little deference,’ unless it . . .
‘falls within an agency’s area of particular expertise.’” Envtl. Defense Fund, Inc. v. State Water
Control Bd., 15 Va. App. 271, 278, 422 S.E.2d 608, 612 (1992) (quoting Johnston-Willis v.
Kenley, 6 Va. App. 231, 243-46, 369 S.E.2d 1, 8 (1988)). “Whether the issue is one of law or
fact or substantial evidence, we are directed to ‘take account of the role for which agencies are
created and public policy as evidenced by the basic laws under which they operate.’”
-4-
Johnston-Willis, 6 Va. App. at 244, 369 S.E.2d at 8 (citing Revisor’s Note to former Code
§ 9-6.14:17). “Thus, the degree of deference afforded an agency decision depends upon not only
the nature of the issue, legal or factual, but also upon whether the issue falls within the area of
‘experience and specialized competence of the agency.’” Id. at 243, 369 S.E.2d at 8 (citing
former Code § 9-6.14:17, recodified as Code § 2.2-4027).
“The basic law under which the Commissioner acts and the purposes of the law are
crucial to the determination of a reviewing court.” Id. (citing Virginia Alcoholic Beverage
Control Comm’n v. York Street Inn, Inc., 220 Va. 310, 313, 257 S.E.2d 851, 853 (1979)). The
General Assembly has authorized the Board and DEQ to grant and enforce permits for the
construction and operation of major sources of air pollution within the Commonwealth “to
protect all aspects of Virginia’s environment.” Code § 10.1-1183. See also Code § 10.1-1322.
In addition, the General Assembly has authorized the Board to promulgate regulations abating,
controlling, and prohibiting pollution throughout the Commonwealth. Code § 10.1-1308.
We conclude that the CO2 question involves a question of law, however, we also take
into account that the issue falls within the area of “experience and specialized competence” of
the Board as the agency authorized by the General Assembly to issue PSD permits.
CARBON DIOXIDE ISSUE
The CAA requires permitting agencies to undertake a BACT analysis for each pollutant
that “is subject to regulation” under the CAA. 42 U.S.C. § 7475(a). The term “subject to
regulation” is not defined in the CAA. Since 1993, EPA has implemented only monitoring,
reporting, and record keeping requirements concerning CO2. See 40 C.F.R. § 75.1.
The Coalition concedes that there are no federal or state standards or emission limitations
for CO2. However, they contend that CO2 is a pollutant “subject to regulation” under the CAA
based on EPA’s monitoring, reporting, and record keeping regulations for CO2. Thus, the
-5-
Coalition asserts that the PSD permit should have included emission limits for CO2. The
Coalition also argues the Board erred by not completing a BACT analysis to establish
enforceable emission limits for CO2 in the PSD permit. In addition, the Coalition asserts the
Board subjected CO2 to regulation for this facility by establishing CO2 offset provisions in the
permit.
DEQ, in concluding that CO2 is not “subject to regulation,” explained:
Currently, there are no ambient air quality standards under Virginia
or federal law that address ambient air concentrations, impact, or
emissions of carbon dioxide (or any other greenhouse gases).
Because carbon dioxide is not a regulated pollutant in Virginia --
that is there are no standards by which DEQ can evaluate impacts
and impose standards and conditions for carbon dioxide or other
greenhouse gas emissions -- DEQ could not develop emission
estimates, engineering analyses, cost estimates, regulatory reviews,
and evaluation of less carbon-intensive technology.
“DEQ Response to Public Comments for the PSD Permit,” p. 17 (June 13, 2008).
The Coalition cites Massachusetts v. EPA, 549 U.S. 497, 528-29 (2007), as authority for
its assertion that CO2 is subject to regulation under the CAA. However, the Court in
Massachusetts held that the EPA has the authority under the CAA to regulate greenhouse gas
emissions from new motor vehicles because greenhouse gases fit within the definition of “air
pollutant.” Id. Whether EPA would in fact regulate greenhouse gas emissions was a matter to
be decided by EPA upon remand. Id. at 528-35. The Court did not hold that CO2 is currently
subject to regulation under the CAA. In addition, the Massachusetts Court did not address the
issue of whether CO2 is a pollutant “subject to regulation” under the CAA. Furthermore, the
case concerned mobile source emissions of CO2, not stationary source emissions as in the
VCHEC case.
The Coalition also relies on In re Deseret Power Elec. Coop., 2008 EPA App. LEXIS 47
(E.A.B. Nov. 13, 2008). In that case, the Environmental Appeals Board of the EPA concluded
-6-
that the meaning of the term “subject to regulation under this Act”
. . . is not so clear and unequivocal as to preclude the [permitting]
Agency from exercising discretion in interpreting the statutory
phrase. Thus we find no evidence of a Congressional intent to
compel EPA to apply BACT to pollutants that are subject only to
monitoring and reporting requirements.
Id. at 122.
In addition, the Board in Deseret stated, “By our holding today, we do not conclude that
the CAA . . . requires the [permitting agency] to impose a CO2 BACT limit.” Id. at 19. In
Deseret, the Board remanded the permit to the permitting authority to reconsider whether or not
to impose a CO2 BACT limit in that specific case because the Board found that the permitting
agency’s stated reason for not including a BACT limit for CO2 was not sufficiently supported by
the record. Id. at 122. Deseret essentially established that CO2 is potentially subject to
regulation. In addition, as the Coalition concedes in its brief, the Deseret ruling left the final
decision whether to regulate CO2 to regulators.
As stated above, CO2 was subject only to monitoring and reporting requirements under
the CAA at the time the VCHEC PSD permit was issued. The Coalition contends that the
monitoring, reporting, and record keeping requirements for CO2 clearly amount to some form of
“regulation.” However, not only did the Deseret opinion conclude otherwise, as stated above,
but so did the EPA. On December 18, 2008, in response to the Deseret decision, EPA issued a
memorandum that was “intended to resolve any ambiguity” in the phrase “any pollutant that
otherwise is subject to regulation.” The memorandum concludes that the phrase “exclude[s]
pollutants for which EPA regulations only require monitoring or reporting but . . . include[s]
each pollutant subject to either a provision in the [CAA] or regulation adopted by EPA under the
[CAA] that requires actual control of emission of that pollutant.” “EPA’s Interpretation of
Regulations that Determine Pollutants Covered By Federal Prevention of Significant
-7-
Deterioration (PSD) Permit Program,” Memorandum from Stephen L. Johnson, Administrator,
EPA, to Regional Administrators, p. 1 (Dec. 18, 2008) (Johnson memorandum). 1
In addition, on December 31, 2008, the EPA Administrator issued an interpretive
memorandum (December 31, 2008 interpretive memorandum) clarifying the Johnson
memorandum, which stated the following:
This memorandum contains EPA’s definitive interpretation of
“regulated NSR pollutant” and is intended to resolve any
ambiguity in the definition, which includes “any pollutant that
otherwise is subject to regulation under the Act.” As of the date of
the memorandum, EPA interprets this definition of “regulated NSR
pollutant” to exclude pollutants for which EPA regulations only
require monitoring or reporting but include all pollutants subject to
a provision in the Act or regulation adopted by EPA under the Act
that requires actual control of emissions of that pollutant.
“Clean Air Act Prevention of Significant Deterioration (PSD) Construction Permit Program;
Interpretation of Regulations That Determine Pollutants Covered by the Federal PSD Permit
Program,” 73 Fed. Reg. 80,300 (Dec. 31, 2008). 2
Moreover, in a case similar to the instant appeal, the Court of Appeals of Georgia found
that “because no provisions of the CAA or [Georgia law] control or limit CO2 emissions, CO2 is
not a pollutant that ‘otherwise is subject to regulation under the [CAA].’ Thus CO2 is not a
‘regulated NSR pollutant’ in the PSD program and was not required to be controlled by use of
BACT.” Longleaf Energy Assocs, LLC v. Friends of the Chattahoochee, Inc., 681 S.E.2d 203,
1
We also note that the Johnson memorandum states that while some states may make
CO2 “subject to regulation” under the CAA, this development does not require regulation of CO2
by other states, citing Connecticut v. EPA, 656 F.2d 902, 909 (2d Cir. 1981). Johnson
memorandum at 15.
2
Although the Johnson memorandum and the December 31, 2008 interpretive
memorandum were not promulgated as part of EPA’s rulemaking authority, an “‘agency’s
interpretation [of its own regulations] must be given controlling weight unless it is plainly
erroneous or inconsistent with the regulation.’” Sierra Club v. Franklin County Power of Ill.,
LLC, 546 F.3d 918, 931 (7th Cir. 2008) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512 (1994) (internal quotation marks omitted)).
-8-
209 (Ga. Ct. App. 2009). See also Powder River Basin Res. Council v. Wyo. Dep’t of Envtl.
Quality, 226 P.3d 809, 824-25 (Wyo. 2010) (interpretation that CO2 is not “subject to regulation”
“is fully consistent with the EPA’s longstanding position”).
The Board incorporated into the PSD permit CO2 mitigation measures offered voluntarily
by Dominion. Pursuant to Paragraph 30 of the PSD permit, Dominion will repower its existing
coal-fired Bremo Bluff Power Station with natural gas within two years of commencement of
commercial operation of VCHEC to partially offset various emissions from VCHEC, including
CO2. In addition, pursuant to Paragraph 26 of the PSD permit, Dominion will use increasing
percentages of biomass (wood) as fuel at the VCHEC. The Coalition asserts that by
incorporating these voluntary CO2 emission reduction measures into the permit, the Board was
“regulating” CO2, thereby subjecting it to regulation pursuant to the CAA and requiring the
completion of a BACT analysis.
Although the PSD permit contains the provisions that Dominion will change the fuel used
at the Bremo Power Station Plant and use a percentage of biomass as fuel at VCHEC, these
provisions address only these two conditions. Neither provision refers specifically to CO2.
Neither provision in any way attempts to quantify the reduction in CO2 emissions expected to be
achieved by the voluntary measures or establishes any emission limits for CO2. Indeed, the
position of DEQ and the Board is that there is no regulatory framework for CO2 under the CAA
and there are no federal or state standards by which DEQ can evaluate impacts and impose
standards for CO2. 3 Therefore, we disagree with the Coalition that the inclusion of these
provisions in the permit rendered CO2 “subject to regulation” under the CAA.
3
At the June 25, 2008 meeting of the Board at which the Board voted to issue the PSD
permit, Vice Chairman Vivian Thompson stated:
By adopting the voluntary steps into this permit, we
consider the following facts: Carbon dioxide is a pollutant under
-9-
Because no provision of the CAA or Virginia law controls or limits CO2 emissions, CO2
is not a pollutant “subject to regulation.” Therefore, CO2 is not a “regulated NSR pollutant”
under the PSD permitting program, and the Board was not required to complete a BACT analysis
to establish permit limits for CO2 emissions at the time it issued the VCHEC PSD permit.
Accordingly, we affirm the circuit court’s decision concerning the CO2 issue.
STANDARD OF REVIEW FOR PARTICULATE MATTER ISSUE
The Coalition contends the circuit court erred by approving the Board’s use of PM10 as a
surrogate for the regulation and control of PM2.5 without conducting a surrogacy analysis and
demonstrating that it was reasonable to do so pursuant to National Lime Ass’n v. EPA, 233 F.3d
625 (D.C. Cir. 2000).
The circuit court’s letter opinion reflects that it viewed this issue as a question of fact and
reviewed the issue under the substantial evidence standard of review. The circuit court ruled that
“[u]pon review of the record,” the decision of the Board was “supported by substantial evidence
in the record, for the reasons stated in the briefs and oral arguments of . . . the Board and
Dominion.”
“[An] agency’s factual findings must be sustained if the record contains substantial
evidence to support those findings. Code § 2.2-4027.” Frederick County Bus. Park, LLC v.
Dep’t of Envtl. Quality, 278 Va. 207, 211, 677 S.E.2d 42, 44 (2009). “Under the ‘substantial
evidence’ standard, the reviewing court may reject an agency’s factual findings only when, on
the [CAA]. However, there is as yet no regulatory framework for
carbon dioxide or greenhouse gas emissions under the [CAA],
specifically under the provisions we are looking at here today.
* * * * * * *
The exact emissions averted that we will get in these two
combined actions are a little in question.
- 10 -
consideration of the entire record, a reasonable mind would necessarily reach a different
conclusion.” Alliance to Save the Mattaponi v. Commonwealth, 270 Va. 423, 441, 621 S.E.2d
78, 88 (2005).
This standard is designed to give stability and finality to the
factual findings of administrative agencies. In applying the
substantial evidence standard, the reviewing court is required to
take into account “the presumption of official regularity, the
experience and specialized competence of the agency, and the
purposes of the basic law under which the agency has acted.”
Id. at 442, 621 S.E.2d at 88 (quoting Code § 2.2-4027).
“[W]here the question involves an interpretation which is within the specialized
competence of the agency and the agency has been entrusted with wide discretion by the General
Assembly, the agency’s decision is entitled to special weight in the courts.” Johnston-Willis, 6
Va. App. at 244, 369 S.E.2d at 8.
We hold that substantial evidence supported the Board’s approach to controlling PM2.5 in
the PSD permit. Thus, the circuit court did not err in affirming the Board’s decision.
PARTICULATE MATTER ISSUE
The Coalition contends the circuit court erred by approving the Board’s use of one air
pollutant regulated under the CAA, PM10, as a surrogate for the regulation and control of another
CAA regulated air pollutant, PM2.5, without first demonstrating that it was reasonable to do so.
The Coalition argues that the law at the time the permit was issued required a demonstration that
VCHEC’s PM2.5 pollution would not exceed EPA-established health protection standards for
ambient concentrations of PM2.5 and that Dominion would operate best available pollution
controls to limit the PM2.5 emissions. The Coalition further asserts that the Board “blindly”
relied on outdated EPA guidance documents that lacked the force of law in making its decision
to use PM10 as a surrogate. Furthermore, the Coalition contends that Dominion and the Board
- 11 -
were required to comply with a three-part test for the use of a surrogate pollutant established in
National Lime, 233 F.3d at 637-39.
We find that substantial evidence supported the Board’s decision to use PM10 as a
surrogate for PM2.5 in establishing the permit limit for PM2.5. The law and policy applicable at
the time the Board approved the permit authorized using PM10 as a surrogate for PM2.5. EPA’s
policy was set forth in a memorandum dated October 23, 1997 entitled “Interim Implementation
of New Source Review Requirements for PM2.5” authored by John S. Seitz, Director, EPA Office
of Air Quality Planning & Standards (October 23, 1997). This memorandum provided that the
basis for its position that PM10 was an appropriate surrogate for PM2.5 was the “significant
technical difficulties” that existed regarding PM2.5 monitoring, emission estimation, and
modeling. On April 5, 2005, this PM10 surrogate policy was affirmed in another EPA
memorandum. 4
On October 10, 2006, DEQ issued a policy adopting EPA’s guidance on interim
implementation of NSR for PM2.5. The DEQ guidance provided that:
For the purpose of implementing Major New Source Review, DEQ
shall use PM10 as a surrogate for PM2.5 as specified in the EPA
guidance documents until such time as:
[1] DEQ establishes a more appropriate implementation
methodology; or
[2] EPA promulgates revised implementation guidance or
policy; or
[3] EPA promulgates final regulations[.]
Air Guidance Memorandum No. APG-307, “Interim Implementation of New Source Review for
PM2.5,” James E. Sydnor, DEQ Air Division Director (October 10, 2006).
4
“Implementation of New Source Review Requirements in PM-2.5 Nonattainment
Areas,” Stephen D. Page, Director, EPA Office of Air Quality Planning & Standards (April 5,
2005).
- 12 -
Therefore, on June 30, 2008, when the PSD permit was issued in this case, DEQ was
acting within its own policy as adopted from the EPA guidance and policy applicable at the time.
This policy authorized the use of PM10 as a surrogate for PM2.5. 5
The Coalition also asserts that Dominion and the Board were required to apply the
three-part surrogate test set forth in National Lime, 233 F.3d at 637-39, for determining whether
it was reasonable to use PM10 as a surrogate for PM2.5. However, the National Lime test does not
apply to the use of PM10 as a surrogate for PM2.5 in PSD permits as is the issue in this case.
Rather, National Lime involved the use of PM as a surrogate for hazardous air pollutants in the
context of a Maximum Achievable Control Technology (MACT) permits. Accordingly, the case
is inapposite to this issue.
Furthermore, the record shows that DEQ and the Board considered the appropriateness of
using PM10 as a surrogate for PM2.5. Because the regulation of PM2.5 is in transition, the Board
included in the PSD permit a condition requiring the review of the PM2.5 permit limits when final
PM2.5 implementation guidance is promulgated. In addition, the permit requires VCHEC to
conduct an ambient air quality analysis of its PM2.5 emissions when final PM2.5 implementation
guidance, policy, or rules are promulgated. We also note that, during the permitting process,
Dominion conducted a modeling study to assess VCHEC’s PM2.5 ambient air quality impacts. In
DEQ’s Response to Public Comments, DEQ stated that this assessment demonstrated
compliance with the PM2.5 NAAQS.
5
One month prior to the issuance of the PSD permit, EPA promulgated a final regulation,
which took effect on July 15, 2008, and provided that the PSD program would no longer use a
PM10 program as a surrogate. However, as the Coalition acknowledges, the regulation also
provided that states with an approved SIP, which includes Virginia, would continue to be
authorized to use PM10 as a surrogate for PM2.5 for a three-year transition period.
“Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than
2.5 Micrometers (PM2.5),” Fed. Reg. 28,321, 28,340-28,341 (May 16, 2008).
- 13 -
The decision by DEQ and the Board to use PM10 as a surrogate for PM2.5 was consistent
with federal regulations and state guidance in effect at the time the permit was issued. 6 Taking
into account “the presumption of official regularity, the experience and specialized competence
of the agency, and the purposes of the basic law under which the agency has acted” the decision
was supported by substantial evidence in the record. See Code § 2.2-4027.
For the foregoing reasons, the decision of the circuit court is affirmed.
Affirmed.
6
The Coalition cites EPA regulatory action taken after the permit was issued in this case.
However, any subsequent decision by EPA to reconsider or reinterpret their guidance and policy
applicable at the time the permit was issued in this case does not apply to the issues at hand. The
issuance of the PSD permit was a case decision. See Commonwealth v. County Utilities, 223
Va. 534, 541, 290 S.E.2d 867, 871 (1982) (State Water Control Board’s issuance of permit was
case decision). Code § 2.2-4001 provides that a case decision is rendered in light of the laws and
regulations in effect at the time of the decision.
- 14 -