Sierra Club v. Air Quality Board

2009 UT 76
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Utah Chapter of the Sierra No. 20080113
Club, a non-profit organization,
Petitioner,
v.
Air Quality Board, an agency of
the State of Utah; and Division
of Air Quality, an agency of F I L E D
the State of Utah,
Respondents. December 4, 2009
---
Original proceeding in this court
Attorneys: John Pace, Joro Walker, Salt Lake City,
for petitioner
Mark L. Shurtleff, Att’y Gen., Fred G. Nelson,
Paul McConkie, Christian C. Stephens, Asst. Att’ys
Gen., Salt Lake City, for respondents
Michael G. Jenkins, Martin K. Banks, Salt Lake City,
for intervenors
Fred W. Finlinson, Saratoga Springs, Brian W.
Burnett, James D. Gilson, Salt Lake City, for
Sevier Power Company
Joel Ban, Salt Lake City, for amicus Utah Physicians
for a Healthy Environment
---
DURHAM, Chief Justice:
INTRODUCTION
¶1 In 2004, the Utah Division of Air Quality granted
Sevier Power Company (the Power Company) an approval order to
construct a coal-fired, circulating fluidized bed power plant.
Sierra Club appeals the decision of the Utah Air Quality Board
(the Board) denying its Request for Agency Action, which
challenged the approval order for failing to comply with both
federal statutes and the Utah State Implementation Plan’s
requirements for the prevention of significant deterioration
(PSD) of air quality. We reverse in part, and affirm in part the
Board’s decision.

1 Utah’s State Implementation Plan is incorporated into the
Utah Air Conservation Act, Utah Code sections 19-2-101 to -127
and Utah Administrative Code rule 307.
2 Beginning with step one, the top-down method requires the
applicant to identify all available control technology options
for the proposed facility for each regulated pollutant. Under
the BACT definition, these technologies include “production
processes, or available methods, systems, and techniques,
including fuel cleaning, clean fuels, or treatment or innovative
fuel combustion techniques.” Clean Air Act § 169, 42 U.S.C.
§ 7479(3); Utah Admin. Code r. 307-101-2. In effect, the
reviewer must consider lower emitting processes and practices,
add-on controls, or a combination of the two. Under step two,
(continued...)
No. 20080113 2
BACKGROUND
¶2 The Clean Air Act, codified at 42 U.S.C. §§ 7401 to
7515, aims to “protect and enhance the quality of the Nation’s
air resources” by prescribing national ambient air quality
standards, which state and regional authorities are required to
either maintain or progress toward. 42 U.S.C. § 7401 (2006).
Each state enforces both the federal air quality requirements,
and their own air quality requirements, via a state
implementation plan.1
¶3 Critical to the maintenance of the national air quality
standards is the prevention of significant deterioration (PSD)
program. Areas that meet the national standards are considered
to be in attainment. This status is maintained by, among other
things, requiring the owner or operator of a “new major source”
to apply for a new source permit. An application for a new
source permit must show that the owner will construct the
facility in a manner that applies the best available pollution
control technology for regulated pollutants and complies with the
PSD program’s limitations on pollution increases. In Utah, the
new source review permit, also called the PSD permit, is part of
the approval order process. See Utah Admin. Code r. 307-401
(2004).
¶4 All PSD programs, whether federal or state, require a
new source to undergo a best available control technology (BACT)
review. This review is often conducted using the five-step “top-
down method,” which in essence requires the applicant to adopt
the most stringent control technology, unless it can show that
the technology is not achievable due to energy, environmental, or
fiscal impacts.2 EPA, New Source Review Workshop Manual:

2 (...continued)
the reviewer eliminates technically infeasible options. This
requires a documented demonstration that technical difficulties,
such as physical, chemical or engineering principles, would
prevent successful use of the control technology at the proposed
facility. Step three of the top-down review involves a ranking
of the control technologies by their effectiveness, which is
determined based on efficiency, emission rate, and emission
reductions. Finally, in step four, the reviewer analyzes the
economic, environmental, and energy impacts, both beneficial and
adverse, beginning with the first ranked technology. If an
objective evaluation of the impacts proves the top technology to
be inappropriate for the facility, that technology is eliminated
and the next most stringent technology is similarly evaluated.
This process continues until a technology cannot be eliminated
based on environmental, energy, or economic impacts, and that
technology is then proposed as the BACT for the pollutant and
emission under review. EPA, New Source Review Workshop Manual:
Prevention of Significant Deterioration and Nonattainment Area
Permitting B.6-.9 (1990).
3 No. 20080113
Prevention of Significant Deterioration and Nonattainment Area
Permitting B.2 (1990),
http://www.epa.gov/region07/programs/artd/air/hsr/hsrmemos/
1990wman.pdf. Once the BACT is selected for a new facility, an
emission limitation based on that control technology is also
imposed as part of BACT.
¶5 In addition to the BACT analysis, a new source seeking
a PSD permit must also complete an air quality analysis. The
purpose of this analysis is to ensure that the emissions from the
proposed facility, in conjunction with the emissions from other
sources, will not cause or contribute to a violation of the
national ambient air quality standards or the PSD increment
limits. The national air standards place a ceiling on the total
concentration of certain pollutants in the atmosphere. The PSD
increments, on the other hand, place a limitation on the amount a
source may increase the concentration of a pollutant over the
baseline. The amount of increase allowed varies based on the
location of the proposed source. Locations are divided into
three categories. Class I allows the smallest increase in
pollution levels and typically covers state and national parks
and other wilderness and recreation areas. Class II allows a
moderate increase and applies to areas considered normal growth
areas. Class III areas can have the largest increment and are
areas where the state or local authority foresees a greater
amount of industrial development.

3 Because Mr. Sprott as director and executive secretary of
the Board acts on behalf of the Division, we use the terms “the
Division” and “the Secretary” interchangeably.
No. 20080113 4
PROCEDURAL HISTORY
¶6 On October 12, 2004, Richard W. Sprott, executive
secretary (the Secretary) for the Utah Air Quality Board and
director of the Division of Air Quality (the Division)3 issued an
approval order to the Power Company to build a coal-fired,
circulating fluidized bed power plant. The approval order
indicated that the Division found the proposal for the new
electric power facility to comply with the Utah State
Implementation Plan and authorized the Power Company to begin
construction so long as the conditions of the approval order were
met. The conditions itemized in the approval order included a
requirement that the Power Company, in writing, notify the
Secretary of the status of the facility’s construction or
installation if it had not been completed within eighteen months
of the date of the approval order, October 12, 2004. “At that
time, the Executive Secretary shall require documentation of the
continuous construction and/or installation of the operation and
may revoke the AO [approval order] in accordance with R307-401-
11.” Approval Order, DAQE-AN2529001-04, at *5, ¶ 9 (Oct. 12,
2004).
¶7 The Sierra Club challenged the approval order by
submitting a Request for Agency Action. In its Request for
Agency Action, the Sierra Club argued that the Board’s approval
order was invalid because it failed to comply with the Clean Air
Act, the Utah Air Conservation Act, and various provisions of the
Utah Administrative Code enforcing the federal and state Acts.
Among the numerous grounds for challenging the approval order,
relevant to this appeal the Sierra Club argued (1) that the
Division failed to evaluate the emission of carbon dioxide and
other greenhouse gases in its BACT analysis, (2) that the
Division improperly excluded integrated gasification combined
cycle technology as an available control technology, (3) that the
emission limits set as part of the BACT review were in error,
(4) that the Division wrongfully adopted a significant impact
levels policy for determining the cumulative impact of a new
source on Class I areas, and (5) that the Division failed to
adequately complete a Class I increment analysis for sulfur
dioxide.
¶8 The Board challenged the Sierra Club’s standing, but
lost on appeal to this court. See Utah Chapter of the Sierra
Club v. Utah Air Quality Bd., 2006 UT 73, ¶ 11, 148 P.3d 975.
PacifiCorp was then allowed to intervene on two issues--whether a

4 In a separate case issued today, Appellants James O.
Kennon and Dick Cumiskey also challenge this issue and present
additional arguments. Where their arguments overlap, we address
them in this opinion.
5 No. 20080113
BACT evaluation was required for carbon dioxide and other
greenhouse gases and whether integrated gasification combined
cycle technology was properly excluded from the BACT evaluation.
¶9 The Sierra Club then amended its complaint to include a
claim that, in issuing the approval order, the Division failed to
follow federal procedures for the invalidation or extension of a
PSD permit.4 The Sierra Club moved for summary judgment on this
issue. The Board denied this motion and instructed the Secretary
to formalize in writing the Division’s decision regarding the
Power Company’s request for an extension.
¶10 The Power Company, PacifiCorp, and the Division also
filed motions for judgment on the pleadings asking the Board to
dismiss the Sierra Club’s claims that the Division did not
properly administer the BACT review as a matter of law. The
Board granted the motion for judgment on the pleadings as to the
evaluation of carbon dioxide emissions, noting that neither the
EPA nor the Utah Air Quality Board had promulgated rules for
limiting or otherwise controlling the emission of greenhouse
gases. The Board, however, denied summary judgment on the
consideration of integrated gas combined cycle technology as part
of the BACT evaluation because the Board determined that the
issue presented contested factual issues that would require an
evidentiary hearing.
¶11 The Board then held three days of hearings to address
the integrated gas combined cycle technology issue, as well as
the Sierra Club’s remaining challenges. In a written order, the
Board denied all of the Sierra Club’s challenges and approved the
granting of the approval order. Specifically, the Board held as
follows:
(1) A BACT review is only required for
pollutants that are regulated, not
pollutants that could be regulated;
carbon dioxide and other greenhouse
gases are not currently regulated.
(2) The Division did not err by
excluding integrated gas combustion
cycle technology from the BACT
analysis because adopting the
process would redefine the design

No. 20080113 6
of the power plant. Additionally,
the Board found that the technology
was still in development and,
therefore, was not available.
(3) The Division did not err in
accepting selective noncatalytic
reduction and an emission
limitation of 0.1 lb/MMBtu on a
twenty-four-hour basis as the BACT
for sulfur dioxide because other
control technologies were not
feasible and a lower emission
limitation had not been
demonstrated for a similar plant.
(4) The Division did not err in
adopting the significant impact
levels as a screening method for
whether the Class I increment would
be violated. No rulemaking was
required because this is a
technical tool for making a PSD
determination.
(5) The Division did not err in
allowing the exclusion of IPP Unit
3 and Hunter 1 from the Power
Company’s cumulative analysis for
the Class I increment.
Additionally, the use of long-term
averages for modeling did not
violate the state’s rules for PSD.
(6) The Division did not err by not
requiring a new BACT analysis when
construction on the proposed
facility did not begin within
eighteen months of the approval
order. First, the approval order
was still valid because the
automatic-revocation language of
the federal rules had not been
adopted by the state. Second, the
Division properly interpreted and
enforced the state implementation
plan and the approval order’s
requirements that a review take

5 The Board considered two additional issues, which the
Sierra Club does not appeal.
7 No. 20080113
place and that revocation was based
on the discretion of the Secretary.
¶12 The Sierra Club appeals this order.5 We have
jurisdiction pursuant to Utah Code sections 63G-4-403 (Supp.
2008) and 78A-3-102(3)(b) (2008).
STANDARD OF REVIEW
¶13 The Utah Administrative Procedures Act governs our
review of final determinations made by state administrative
agencies, such as the Utah Air Quality Board. Utah Code Ann.
§ 63G-4-102(1)(b) (Supp. 2008). The Administrative Procedures
Act provides relief to a party challenging a formal adjudicative
procedure if the agency “erroneously interpreted or applied the
law,” or based an action “upon a determination of fact . . . that
is not supported by substantial evidence when viewed in light of
the whole record before the court,” or is “otherwise arbitrary or
capricious.” Id. § 63G-4-403(4)(d), (g), (h). When reviewing an
agency’s interpretation of law, we review for correctness,
“granting little or no deference to the agency’s determination.”
Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT
74, ¶ 9, 148 P.3d 960. We review administrative rules in the
same manner as statutes, focusing first on the plain language of
the rule. Burns v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370. “In
our inquiry, we seek to give effect to the intent of the body
that promulgated the rule.” Id. When such intent is not clear
from the plain language, we may rely on the administrative
history of the rule to guide our interpretation. See R&R Indus.
Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar. Ass’n, 2008 UT 80,
¶ 25, 199 P.3d 917 (“When a statute is ambiguous, we use
extrinsic interpretive tools such as policy and legislative
intent to guide our analysis.”).
¶14 In contrast, “questions of ‘ultimate fact, mixed
findings of fact and law, and [the agency’s] interpretation of
the operative provisions of statutory law it is empowered to
administer’” are reviewed under an intermediate standard that
considers whether the agency’s determination was rational.
Sierra Club, 2006 UT 74, ¶ 9 (alteration in original) (quoting
Associated Gen. Contractors v. Bd. of Oil, Gas & Mining, 2001 UT
112, ¶ 18, 38 P.3d 291). We set aside these determinations
“‘only if they are imposed arbitrarily and capriciously or are
beyond the tolerable limits of reason.’” Id. (quoting Associated
Gen. Contractors v. Bd of Oil, Gas & Mining, 2001 UT 112, ¶ 18).

6 In 2006, the Utah Air Quality Board did incorporate all of
rule 52.21 in order to comply with the new source reform of 2002.
This action, however, occurred after the approval order in this
case was granted and even after the approval order would have
expired under the federal rule.
No. 20080113 8
ANALYSIS
¶15 The Sierra Club challenges the Board’s holdings as to
the approval order’s compliance with both state and federal PSD
requirements. In addition, the Sierra Club argues that together
the Board’s errors constitute cumulative error that requires
reversal. We address each of the Sierra Club’s arguments,
beginning with whether the approval order was invalidated by the
expiration of an eighteen month deadline for construction.
I. AN APPROVAL ORDER MUST BE REVIEWED IN A MANNER
THAT FURTHERS THE GOALS OF THE PSD PROGRAM
¶16 The Clean Air Act requires states with regions in
attainment of the national ambient air quality standards to guard
their attainment standards by implementing the PSD provisions
found in sections 160 to 165 of the Clean Air Act. See 42 U.S.C.
§§ 7470-79 (2006). To ensure proper enforcement of these
provisions, the EPA promulgated a federal PSD program, which is
found in rule 52.21. See Approval and Promulgation of
Implementation Plans; PSD, 68 Fed. Reg. 74483, 74484 (Dec. 24,
2003). The federal program serves as a default program for
states that have not had their own PSD program approved or states
that choose to rely instead on the federal rules.6 As part of
the federal PSD program, rule 52.21(r)(2) provides that
[a]pproval to construct shall become invalid
if construction is not commenced within 18
months after receipt of such approval, if
construction is discontinued for a period of
18 months or more, or if construction is not
completed within a reasonable time. The
Administrator may extend the 18-month period
upon a satisfactory showing that an extension
is justified.
Approval and Promulgation of Implementation Plans, 40 C.F.R.
§ 52.21(r)(2) (2009). In contrast, Utah’s corresponding rule,
which is part of the approval order process, does not provide for
automatic expiration of an approval order, but instead grants the

7 Renumbered as r. 307-401-18 in 2006. See 23 Utah Bull.
14, 22 (Dec. 1, 2005).
9 No. 20080113
Secretary discretion to revoke the approval order. Utah Admin.
Code r. 307-401-11.7
¶17 The Sierra Club argues that federal rule 52.21(r)(2)
applies to Utah’s PSD permit process and supersedes the state
administrative rule relating to an approval order’s deadline for
construction. According to the Sierra Club, the Environmental
Protection Agency (EPA) incorporated the federal rule in Utah’s
PSD program when approving amendments to the state implementation
plans. Alternatively, the Sierra Club argues that the federal
rule should be applied because Utah’s rule is less stringent than
the federal rule. We hold that while the federal rule has not
been incorporated and while the EPA accepted the state rule as
part of the state implementation plan, the state rule must still
be interpreted in a way that serves the purpose of the Clean Air
Act and the PSD program.
A. Federal Rule 40 C.F.R. 52.21(r)(2) Has Not Been Incorporated
into Utah’s Air Quality Permitting Procedures
¶18 The Sierra Club argues that federal rule 52.21(r)(2) is
part of the state implementation plan and therefore is binding on
the Division and applicants for air quality permits. To support
its position, the Sierra Club points to 40 C.F.R § 52.2346 to
argue that the federal rule was incorporated into Utah’s state
implementation plan. Looking at plain language and, where
necessary, the legislative history of the rule on which the
Sierra Club relies, we hold that the federal rule was not
incorporated.
¶19 Section 52.2346 of the Code of Federal Regulations
approves the Utah State Implementation Plan (SIP) as meeting the
requirements of the PSD program, but provides that “[t]he
provisions of § 52.21 . . . are hereby incorporated and made a
part of the Utah State Implementation Plan and are applicable to
proposed major stationary sources or major modifications to be
located on Indian Reservations.” On its face, the plain language
of the rule seems to be in conflict with itself, and is
therefore, ambiguous. For this reason, we turn to the rule’s
legislative history.
¶20 The administrative history, as reflected in the Federal
Fegister, manifests an intent to accept the PSD provisions in
Utah’s plan and incorporate the federal provisions only in
relation to the enforcement of the PSD provisions on tribal
lands. 47 Fed. Reg. 6427. The Sierra Club makes numerous

No. 20080113 10
arguments relating to the administrative history of a 2003
amendment of rule 52.2346. However, as this amendment was only a
change to ensure automatic updating of internal references, it is
not the most relevant administrative history. See 68 Fed. Reg.
74483, 74484-85. Additionally, any arguments referencing the
language adopted for other states provides little assistance, as
we do not know the status of their PSD programs. We instead rely
on the administrative history of the approval of Utah’s PSD
program. As explained by the EPA when first amending rule
52.2346, the agency found the Utah and the federal PSD provisions
to be “practically identical” except for one major difference:
“the State’s regulation does not necessarily apply on Indian
Reservations.” Approval and Promulgation of State Implementation
Plans; Utah, 47 Fed. Reg. 6427 (Feb. 12, 1982) (codified at 40
C.F.R. § 52.2346). The language of 52.2346 was amended with the
intent to “approve[] the State regulation and remove[] the
federal regulation except as it applies on Indian Reservations.”
Id. Thus, while the language of the rule may be conflicting, it
is clear that by adopting the language, the EPA intended to
incorporate rule 52.21 to apply only to Indian Reservations.
Accordingly, we hold that federal rule 52.21 has not been
incorporated into Utah’s State Implementation Plan for land
within the state’s jurisdiction; therefore, Utah’s provisions
govern.
B. Utah’s Eighteen-month Review Provision Must Be
Interpreted and Applied in a Manner that
Furthers the Purpose of the PSD Program
¶21 The Sierra Club argues that even if the federal rule
has not been incorporated into Utah’s SIP, the Division should
have applied the federal rule because the state rule was less
stringent than the federal. We hold that while the EPA’s
approval of Utah’s PSD program is an implicit approval of the
stringency of its provisions, the Division must interpret Utah’s
provisions in a way that furthers the purpose of the state rule
and its enforcement of the Clean Air Act.
¶22 State PSD provisions, like all other air quality
protections, must comply with and adequately enforce the Clean
Air Act. The Act requires states to adopt emission control and
maintenance plans that implement standards and limitations as
stringent as those set by the EPA. See, e.g., 42 U.S.C. § 7416.
Additionally, in line with setting local standards, the Clean Air
Act requires states to adopt enforcement standards and procedures
as part of their SIP in order to ensure that emitting facilities
comply with the standards and requirements of both the Clean Air
Act and state air quality statutes. 42 U.S.C. § 7410 (state plan
must “include a program to provide for the enforcement of . . . a

8 Utah’s SIP has been revised and subsequently approved
numerous times by the EPA since 1982. The approval in 1982,
however, marks the acceptance of Utah’s PSD program.
11 No. 20080113
permit program as required in part[] C,” i.e., a PSD program); 40
C.F.R. § 51 app. V. If this requirement and other requirements
are met, the EPA approves a state implementation plan. The EPA
accepted Utah’s PSD program, including its enforcement
provisions, as part of Utah’s SIP in 1982. 47 Fed. Reg. 6427.8
In so doing, we must assume that the EPA found the enforcement
provisions of Utah’s PSD program to be adequate. Therefore, we
cannot agree with the Sierra Club that on its face, Utah’s
eighteen-month review, which we interpret to be an enforcement
provision, is not adequately stringent.
¶23 We must also assume that the EPA intended the provision
to be interpreted and applied in a way that enforced the purpose
and requirements of the PSD program. 42 U.S.C. § 7410(a)(2)(J)
(SIP must meet the applicable requirements of “part C,”
prevention of significant deterioration program). The “basic
purpose” of the PSD program is “simply put, to keep clean air
clean.” Roosevelt Campobello Int’l Park Comm’n v. EPA, 684 F.2d
1034, 1036 (1st Cir. 1982). Specifically the authors of the
Clean Air Act intended the program to “protect public health and
welfare from any . . . adverse effect[s] . . . from air
pollution,” “preserve, protect, and enhance the air quality” in
ecologically sensitive areas, “insure that economic growth . . .
occur[s] in a manner consistent with the preservation of existing
clean air resources,” and “assure that any decision to permit
increased air pollution in any area . . . is made only after
careful evaluation of all the consequences of such a decision.”
42 U.S.C. § 7470. In accordance with these purposes, both the
federal and Utah PSD programs have an enforcement provision that
requires a review and possible revocation of a PSD permit if
construction has not begun within eighteen months of the issuance
of an approval order. The EPA’s Environmental Appeals Board has
explained that the purpose of the enforcement rule is “to ensure
that major emitting facilities . . . are constructed in
accordance with reasonably current pollution control standards”
and “to ensure that the available PSD increments . . . allotted
to a permittee are not tied up for indefinite periods of time
. . . .” N.Y. Power Auth., 1 E.A.D. 825 (1983). Because the EPA
accepted Utah’s PSD program with the understanding that it was
“practically identical” to the federal program, 47 Fed. Reg.
6427, Utah’s eighteen-month enforcement provision must be
interpreted in a way that also achieves this outcome.
¶24 The Sierra Club and the appellants in a companion case,
Kennon v. Air Quality Board, argue that if the Board was not

9 We note that the Board has now approved this procedure,
but did so pursuant to its 2006 incorporation of the federal PSD
program, including the federal enforcement provision.
No. 20080113 12
required to revoke the approval order, which we hold it was not,
then it should have required a new BACT analysis and a period for
public comment. 2009 UT __ ¶ 24, __ P.3d __. We decline to
determine the specific procedures required under Utah’s
enforcement statute9 but, as discussed more fully in Kennon, we
hold first, that the review performed by the Board was inadequate
to ensure that the Power Company’s facility would utilize the
most up-to-date pollution control technologies and second, that
the Board’s failure to set a new deadline or any requirements for
establishing a construction timeline failed to prevent an
unwarranted hold of PSD increments for an indefinite period. As
ordered in Kennon, we remand to the Division to apply enforcement
rule 307-401-11 in a way that ensures that the most up-to-date
control technology has been adopted and that increment limits are
not tied up indefinitely.
II. A BACT ANALYSIS WAS NOT REQUIRED FOR CARBON DIOXIDE
¶25 The Sierra Club argues that the Board erred by not
requiring the Division to perform a BACT analysis for greenhouse
gases such as carbon dioxide. The Board, the Sierra Club urges,
should have relied on Utah’s 2006 BACT regulation, which requires
a BACT analysis for all “air contaminants,” rather than the 2005
regulation, which requires a BACT analysis for all “pollutants
subject to regulation.” Acknowledging that it failed to preserve
this argument, the Sierra Club argues that applying the 2005 BACT
rule was plain error. Alternatively, the Sierra Club asserts
that under the 2005 regulation the Division was still required to
perform a BACT analysis for carbon dioxide because it is a
“pollutant subject to regulation.”
A. It Was Not Plain Error for the Board
to Rely on the 2005 BACT Regulation
¶26 The Board did not commit plain error by applying the
2005 regulation after a 2006 amendment renumbered the regulation
and changed the language “pollutant subject to regulation” to
“air contaminant.” We do not review an unpreserved issue unless
exceptional circumstances are present or the error was plain.
Plain error requires the showing of a harmful error that should
have been obvious to the district court, or in this case, the
Board. State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346. “But
under the doctrine of invited error, we have declined to engage
in even plain error review when ‘counsel, either by statement or
act, affirmatively represented to the [trial] court

10 Respondents argue that the Sierra Club did not preserve
this issue for appeal. We disagree. The Sierra Club adequately
raised the issue by addressing it in its Second Request for
Agency Action and the Board ruled on the issue in its Final
Order.
13 No. 20080113
that he or she had no
objection to the [proceedings].’” State v. Winfield, 2006 UT 4,
¶ 14, 128 P.3d 1171 (alterations in original) (quoting State v.
Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111).
¶27 In this case, the Board applied the very administrative
rule that the Sierra Club presented to it in both the 2004
Request for Agency Action and the 2007 Amended Request for Agency
Action. “We have held repeatedly that on appeal, a party cannot
take advantage of an error committed at trial when that party led
the trial court into committing the error.” State v. Dunn, 850
P.2d 1201, 1220 (Utah 1993). In this case, we see no reason to
apply the plain error doctrine to a claimed error introduced by
the appealing party.
¶28 The Sierra Club argues, however, that even though it
presented its argument to the court under the 2005 regulation, it
should have been obvious to the Board that the 2006 regulation
applied because the Board itself adopted the new regulation. We
disagree. The retroactive application of a new regulation is not
obvious. Instead, a controversy is typically “determined on the
basis of the [statutory or administrative] law as it existed at
the time of the occurrence . . . .” Foil v. Ballinger, 601 P.2d
144, 151 (Utah 1979) (quoting Okland Constr. Co. v. Industr.
Comm’n, 520 P.2d 208, 211 (Utah 1974)). Retroactive application
of an administrative rule is an exception to this approach that
requires thorough analysis. So, while there is no indication
that the Sierra Club intentionally withheld this argument from
the Board, we decline to review an error that was not obvious and
that the Sierra Club should have first presented the Board. We
therefore decline to consider the merits of whether the 2006
regulation should have been applied retroactively and instead
consider the Board’s review of the Division’s actions under the
2005 regulation.
B. The Board’s Interpretation of the BACT Regulation
to Exclude Carbon Dioxide Was Reasonable
¶29 The Sierra Club argues that a BACT analysis should have
been completed because the Clean Air Act regulates carbon dioxide
by requiring facilities to monitor and report carbon dioxide
emissions.10 In contrast, Respondents and PacifiCorp argue that
to be regulated, the emission of a pollutant must actually be

11 Renumbered as rule 307-401-2 (2008). See 23 Utah Bull.
14, 22 (Dec. 1, 2005).
No. 20080113 14
restricted or limited in some way, not merely measured. We
conclude that the Board did not err in narrowly interpreting the
phrase “subject to regulation” when reasonable policy concerns
support this interpretation.
¶30 Rule 307-101-2 required a new source to adopt the BACT
for each “pollutant subject to regulation.”11 Recently the
United States Supreme Court determined that carbon dioxide and
other greenhouse gases are pollutants under the Clean Air Act,
Massachusetts v. EPA, 549 U.S. 497, 532 (2007) (“[G]reenhouse
gases fit well within the Clean Air Act’s capacious definition of
‘air pollutant.’”); therefore, our review focuses on whether
carbon dioxide is “subject to regulation under the Clean Air Act
and/or the Utah Air Conservation Act.” Utah Admin. Code r. 307-
101-2 (2004).
¶31 We begin our analysis by determining the proper meaning
of the term “subject to regulation.” This issue has recently
been addressed by two state courts and by the Environmental
Appeals Board, with no consensus on the meaning of the phrase.
It is clear, however, from the analysis completed by these courts
that the language itself does not compel a particular
interpretation. Therefore, the meaning of the phrase must be
determined by reference to administrative intent and policy.
¶32 We conclude that the phrase “subject to regulation” is
ambiguous because there does not appear to be an agreed upon
ordinary meaning for the phrase. As the Environmental Appeals
Board recently concluded, the “language is broad enough to
embrace different meanings, or shades of meaning.” Inre: Deseret
Power Elec. Coop., __ E.A.D. __ (2008), 2008 EPA App. LEXIS 47,
*62.
¶33 Both sides direct our attention to the parallel federal
regulation, which uses a similar phrase in its BACT definition
but also defines New Source Review Pollutants. We find the
definition of little help, however, as it only directs us once
again to our starting point--is carbon dioxide a pollutant
“subject to regulation under the Act”? As defined in 40 C.F.R.
§ 52.21 (b)(50), regulated pollutants as used in the PSD permit
rules include pollutants for which a national ambient air quality
standard has been set, a new source performance standard has been
set, those specifically listed and governed by the ozone
protections of the Clean Air Act, and “[a]ny pollutant that
otherwise is subject to regulation under the Act.” To date,
carbon dioxide is not governed by the national ambient air

12 The EPA’s Region 8 office recently adjudicated this
question under the federal PSD program and concluded that carbon
dioxide was not a regulated pollutant because the EPA’s historic
interpretation of the phrase excluded carbon dioxide and other
uncontrolled pollutants. The EPA Appeals Board reversed this
decision, concluding that the Region failed to prove the EPA had
an established interpretation. Inre: Deseret Power Elec. Coop.,
__ E.A.D. __ (2008), 2008 EPA App. LEXIS 47. The EPA
Administrator then issued a formal interpretation of regulated
pollutants that excluded carbon dioxide. Memorandum from Stephen
L. Johnson, Administrator, EPA, to Regional Administrators (Dec.
18, 2008). This interpretation was based on both historic
treatment of carbon dioxide in terms of the PSD program and the
policy and practical implications of applying BACT. Id. Two
months later, a new EPA Administrator agreed to reconsider the
interpretation of “regulated pollutant” and explained that the
formal interpretation “does not bind States issuing permits under
their own State Implementation Plans” and that “other PSD
permitting authorities should not assume that the
[interpretation] is the final word on the appropriate
interpretation of Clean Air Act requirements.” Letter from Lisa
P. Jackson, Administrator, EPA, to Mr. David Bookbinder, Chief
Climate Counsel, Sierra Club (Feb. 17, 2009).
15 No. 20080113
quality standards, the new source performance standards, or the
ozone protection standards. Thus, it is only a regulated
pollutant for purposes of federal PSD permitting if it is
regulated somewhere else in the Clean Air Act. To date, the EPA
has not settled on a definition of what it means to be
“regulated” by the Clean Air Act.12
¶34 We focus next on policy concerns underlying the
adoption of a broad or narrow definition of the “subject to
regulation” language. Respondents and PacifiCorp argue that
requiring BACT review for carbon dioxide undermines the
rulemaking process for controlling pollution emissions. Further,
the Board argues that it would be impractical to complete a BACT
analysis for carbon dioxide without any “governing standards or
rules.” This argument was accepted recently in a Wyoming
administrative adjudication, which upheld the Wyoming Department
of Environmental Quality’s interpretation of “subject to
regulation” as not applying to carbon dioxide. The Wyoming
Environmental Quality Council was greatly troubled by the fact
that a broader interpretation would require the state agency to
“regulate greenhouse gases . . . without the scientific and
policy resources available to the EPA and the United States
Congress.” Basin Elec. Power Coop., Dry Fork Station, EQC Docket
No. 07-2801 2008 Wyo. ENV LEXIS 3 at *13 (Wyo. Envtl. Quality
Council Aug. 21, 2008). We agree and conclude that, given these

No. 20080113 16
concerns, the Board’s interpretation of the BACT rule was
reasonable.
¶35 The negative impact of carbon dioxide concentrations in
the atmosphere is an issue of national and global concern. See
Massachusetts, 549 U.S. 497, 521-24 (chronicling the development
of climate change research). We do not disregard the import of
this issue. We also do not disregard the broad wording and
preventative purpose of the BACT regulation. Still, when
reviewing the decisions of an administrative agency, we must
afford proper deference to the expertise and discretion of the
Board and decline to overturn its interpretation unless it was
irrational or unreasonable. In this case we conclude that the
Board’s interpretation of the BACT regulation as a supplement to
already existing pollutant control regulations rather than a
stand-alone control regulation is reasonable in light of the need
for a thorough research and rulemaking process to determine the
appropriate standards for controlling or limiting carbon dioxide.
The EPA (spurred by the United States Supreme Court) has recently
undertaken this process. See Regulating Greenhouse Gas Emissions
Under the Clean Air Act, 73 Fed. Reg. 44354 (July 30, 2008). We
hold that the Board’s determination to defer to this formal
process rather than “preempt[ing] ongoing Congressional and EPA
efforts to formulate a CO2 emissions policy” by instituting an
emission limitation as part of BACT review was reasonable.
Longleaf Energy Assocs., LLC v. Friends of the Chattahoochee,
Inc., 681 S.E. 2d 203, 207 (Ga. Ct. App. 2009).
III. THE BACT ANALYSIS SHOULD HAVE INCLUDED INTEGRATED
GASIFICATION COMBINE CYCLE TECHNOLOGY
¶36 Next, the Sierra Club argues that the Board erred in
affirming the Division’s decision to exclude Integrated
Gasification Combine Cycle (IGCC) as a control technology in the
BACT analysis. The Respondents and PacifiCorp argue that the PSD
program did not require consideration of IGCC as an alternative
control technology because it would have required the Power
Company to redesign its facility and, alternatively, because IGCC
is not an available technology. We treat each of these arguments
in turn.
A. The Plain Language of the BACT Analysis
Requires Consideration of IGCC
¶37 Utah Administrative Code rule 307-101-2 defines the
BACT as
an emission limitation and/or other controls
to include design, equipment, work practice,

17 No. 20080113
operation standard or combination thereof,
. . . which the Air Quality Board, on a case-
by-case basis taking into account energy,
environmental and economic impacts and other
costs determines is achievable for such
installation through application of
production processes and available methods,
systems and techniques, including fuel
cleaning or treatment or innovative fuel
combustion techniques for control of each
such pollutant.
¶38 The plain language of this definition indicates that
IGCC technology should be evaluated as part of the BACT review.
First, the definition indicates that the application of
production processes should be considered when determining what
the best control technology will be for a proposed facility.
Additionally, the definition includes innovative fuel combustion
techniques. PacifiCorp argues that fuel combustion is distinct
from IGCC, which is a fuel conversion technology. However, we do
not interpret combustion as limited to only burning fuels;
combustion can also involve a rapid change in a fuel, Webster’s
II New College Dictionary 223 (1995); a fuel combustion technique
could also involve burning the gas created by the fuel.
Regardless, IGCC is a production process and therefore falls
under the plain language of the rule. Acknowledging that IGCC is
a production process, PacifiCorp points to the Board’s factual
finding that “IGCC is a power generation technology, not an
emission control technology.” Findings of Fact, Conclusions of
Law, and Final Order, DAQE-AN2529001-04, at *7, ¶ 10 (Jan. 9,
2008). This fact does not exclude IGCC from the BACT review,
however. As a power generation technology, IGCC can still act as
an emission control technology. The use of IGCC technology can
reduce the emission of criteria pollutants such as nitrogen
oxides, sulphur oxides, carbon monoxide, and particulate matter.
U.S. Dep’t of Energy, Major Environmental Aspects of
Gasification-based Generation Technologies ES-2 (2002)
http:/www.netl.doe.gov/technologies/coalpower/gasification/pubs/p
df/final%20env.pdf. Therefore, we determine it is a control
technology.
¶39 We also reject the Board’s factual finding 11, which
implies that control technologies are only those that can be
added onto the proposed facility. This factual finding, however,
also implies that control technologies are processes and systems
that can be “designed into” a proposed installation. Along the
same lines, the Respondents and PacifiCorp vigorously argue that
IGCC should not have been part of the BACT review because its

No. 20080113 18
adoption could not be designed into the Power Company’s proposed
facility but would require a redesign.
¶40 The notion that a control technology cannot require the
redesigning of a facility originates from EPA guidelines, which
indicate that the BACT review should not be used “as a means to
redefine the design of the source.” EPA, New Source Review
Workshop Manual: Prevention of Significant Deterioration and
Nonattainment Area Permitting B.13 (1990). The EPA illustrated
the rule by explaining that an applicant proposing a coal-fired
electric generator is not required to consider, under BACT
review, building a natural gas-fired electric turbine. We agree
that changing a fuel source would drastically redesign a proposed
facility and therefore production processes that involve a
completely different fuel source need not be considered.
¶41 IGCC and other production processes are more difficult
to analyze where they involve the same fuel source but different
forms of production. Several courts have interpreted this
guidance and concluded that the design of a facility is redefined
when the adoption of a control technology changes the objective
or purpose of the facility. See Sierra Club v. EPA, 499 F.3d
653, 657 (7th Cir. 2007) (upholding the Environmental Appeals
Board’s decision that requiring a proposed mine-mouth plant to
consider a different fuel source would redefine the “‘fundamental
purpose or basic design of [the] proposed Facility.’”); In re:
Old Dominion Elec. Coop., 3 E.A.D. 779, 793 n.38 (1992) (“EPA
does not require a PSD applicant to change the fundamental scope
of its project.”). Deciphering which control strategies would
result in the redefinition of a proposed facility requires a
case-by-case analysis in which the difference between the
strategies accepted and those rejected is often a matter of
degree. For example, a proposed waste combustion facility was
not required to consider as part of its BACT analysis disposing
of the waste by burning in existing electricity-generating
facilities. In re: Pensauken County Res. Recovery Facility, 2
E.A.D. 667 (1988). The adoption of this alternative process
would not only redefine the proposed facility but would negate
the need for the waste combustion facility altogether. In
comparison, the use of clean fuels, a control strategy identified
by the BACT definition, presents a closer question. The Seventh
Circuit recently determined that a mine-mouth electricity plant
was not required to consider the use of clean, Western coal as a
control technology in its BACT analysis. Sierra Club, 499 F.3d
656-57. Exploring the scope of the redefinition test, the court
acknowledged that a stand alone coal-fired electricity plant
would be required to consider clean coal as part of BACT, even
though “[s]ome adjustment in the design of the plant would be
necessary.” Id. at 656. In contrast, the court determined that

19 No. 20080113
because the proposed electricity plant was a mine-mouth power
plant, “the use of [the] particular coal supply [was] an inherent
aspect of the proposed project” and requiring clean coal would
excise this aspect from the project. Id. (citing In re Prairie
State Generating Co., 189808AAB, 2006 EPA App. LEXIS 38, at *39
(EAB Aug. 24, 2006)).
¶42 As illustrated by the Illinois mine-mouth cases, the
purpose of a proposed facility is determined by the description
in the application submitted for the proposed facility, so long
as the “purpose or design is objectively discernable.” Prairie
State, 2006 EPA App. LEXIS 38, at *54. In the Seventh Circuit
case, the applicants proposed to build a mine mouth power plant,
and that description guided the permit issuers’ demarcation of
what technologies would require a redefinition of the design of
the proposed facility. We emphasize that the purpose of the
project must be objective and must focus on the overall business
purpose for the proposed facility. We are wary of the risk of
applicants describing a project in such a limited manner that
they are able to circumvent the goals of BACT, which include
encouraging the use of new technologies. See In re: Knauf Fiber
Glass, GmbH, 8 E.A.D. 121, 127 (1999) (“[T]he purpose of BACT
. . . 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.”).
Thus, when considering what design elements are inherent to the
project, cost and avoidance of the risks associated with adopting
new technologies cannot support what is considered fundamental to
a project’s design. Prairie State, 2006 EPA App. LEXIS 38, at
*58 n.23. Instead, the fundamental aspects must relate to the
basic business purpose of the proposed facility.
¶43 Applying our holding to the facts of this case, we
conclude that considering IGCC would not require the Power
Company to redefine the design of its proposed facility. Like
the plant in Prairie State/Sierra Club, the basic design of the
Power Company’s proposed facility is an electric power generating
plant fueled by coal. With this purpose, it is evident that the
Power Company was not required to consider wind generation for
electric power as an alternative process. However, as in the
Prairie State BACT analysis, Prairie State, 2006 EPA App. LEXIS
38, at * 68-71, the Power Company should have included IGCC in
its BACT review. IGCC is a control technology that can reduce
the emissions of several criteria pollutants. The adoption of
this standard would not require the Power Company to redefine the
design of its proposed facility. The facility would still remain
an electric power generating plant fueled by coal. We note that
the consideration of IGCC in the BACT review does not compel its

No. 20080113 20
adoption; instead, it only requires the Power Company to subject
IGCC to the five-step top down analysis used to determine the
best available technology.
B. There Was Insufficient Evidence to Support the Board’s
Determination That IGCC Is Not an Available Technology
¶44 Respondents and PacfiCorp argue, however, that even if
IGCC would not redefine the purpose of the Power Company’s
proposed facility, its inclusion in the BACT review was not
required because it was not an available technology. The Board
agreed with this argument and included in its order a factual
finding that IGCC was not an available control technology. We
review this not as a factual finding but as an application of law
to fact, which is a mixed question of law and fact. Therefore,
we review the record to determine whether the Board’s
determination was rational.
¶45 The term “available” is undefined in Utah’s rules. The
EPA and its appeals board have defined available technologies as
those that have a “practical potential for application . . .
includ[ing] those employed outside of the United States.” EPA,
New Source Review Workshop Manual: Prevention of Significant
Deterioration and Nonattainment Area Permitting B.5 (1990). For
a technology to be practically applied, it must have been applied
to or permitted for a full-scale operation. Id. at B.13. Thus,
“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.” Knauf
Fiber Glass, GmbH, 8 E.A.D at 130 (emphasis in original)(quoting
New Source Review Workshop Manual at B.5). This definition is
not binding on the Division or the Board, but in our view,
because it is included in a manual created to guide air-
permitting authorities throughout the nation, it is very
persuasive. Further, while the Board has discretion to interpret
its own regulations, as we discussed in Part I, it must do so
with an eye to furthering the goals of the PSD program. As
indicated in its title, the purpose of the BACT review is to
ensure that the best available control technology is adopted.
Implicit in this purpose is a goal to encourage the adoption of
new technologies.
¶46 In this case, the Board seems to have used the term
“available” in a narrow sense. After receiving testimony that
IGCC is currently being used in coal-based electric plants, two
in the United States in addition to fourteen other plants
operating worldwide, and that more IGCC plants are proposed in
the United States, the Board determined that the technology was
not available but still in the developmental stage. This

21 No. 20080113
determination appeared to be based on the testimony of engineer
Stephen Jenks, who testified that the two coal-based IGCC plants
in the United States had not reached their operational goals.
This testimony was given in the context of his testimony that
circulating fluidized bed was a better production process because
it better reached its operational capability. While relevant to
the BACT process, this testimony does not relate to determining
which technologies are available; instead it relates to Step II,
which compares the available control strategies based on their
technological feasibility. Therefore, it was unreasonable to
rely on this testimony to determine that IGCC was unavailable.
To the contrary, if adequate evidence is presented that a control
technology, including production processes, is operating or
permitted for similar operations, the permitting authority should
consider the technology available. In this case, such evidence
was presented. Therefore, we conclude that the Board’s
determination that IGCC was unavailable was unreasonable.
Because IGCC was available and the plain language of the BACT
definition indicates it should be considered in the BACT
analysis, we vacate the Board’s BACT analysis conclusions.
IV. THE BACT EMISSION LIMITATION FOR NITROGEN OXIDES
WAS NOT REASONABLE WHEN THERE WAS EVIDENCE THAT
LOWER EMISSIONS WERE ACHIEVABLE
¶47 The Sierra Club argues that the Board erred by
concluding that the Division’s BACT determination for nitrogen
oxides was sufficient when the factual findings supporting the
Division’s BACT emission limitation were insufficient and lower
emission rates for nitrogen oxides were possible. Specifically,
the Sierra Club argues that the Division failed to set an
appropriate BACT emission limitation because it relied on the
Power Company’s suggested emission limitation and failed to adopt
lower emission limitations achieved by other facilities using the
control technology selective noncatalytic reduction. The
Respondents argue that the lower rate achieved by the other
facilities--a rolling average of .07 pounds per million Btu in a
thirty-day period--is equivalent to the emission limitation--0.1
pounds per million Btu in a twenty-four hour period--imposed on
the Power Company. Further, even if these are not equivalent,
the Division and Power Company argue that the Division’s
selection of the 0.1 emission limitation was proper because it
was the most stringent limitation for nitrogen oxides. We hold
that the imposition of the nitrogen oxides emission rate was
unreasonable because no evidence was presented to show that this
emission limitation would achieve the same overall nitrogen
oxides reduction as a lower thirty-day average emission
limitation.

No. 20080113 22
¶48 As defined, BACT is “an emission limitation and/or
other controls . . . based on the maximum degree or reduction of
each pollutant subject to regulation.” Utah Admin. Code r. 307-
101-2 (2004). Further, the EPA has described the goals of BACT
emission limitations in three-parts: (1) to achieve the lowest
percent reduction, (2) to protect short-term ambient standards,
and (3) to be enforceable as a practical matter. See EPA, New
Source Review Workshop Manual: Prevention of Significant
Deterioration and Nonattainment Area Permitting B.6-.9 (1990).
As presented to the Board, the emission limitation set by the
Division achieves two of the three goals. First, evidence was
presented to the Board that the manufacturer guaranteed a maximum
0.1 twenty-four-hour average emission. This was sufficient
evidence that the twenty-four-hour average emission limitation
was achievable. Additionally, the Division presented evidence
that the lowest twenty-four-hour emission limitation was 0.1
pounds per million. Although there was evidence that lower rates
were achievable, this was sufficient evidence for the Board to
rely on in determining that 0.1 pounds per million was the
greatest short-term emission reduction achievable. The Division,
however, did not provide sufficient evidence that this same
limitation achieved the maximum reduction of nitrogen oxides
possible. The Division and Power Company argued at length that a
twenty-four-hour average and thirty-day average were comparable.
This argument, however, was supported with scant evidence.
Respondents argued that the thirty-day averages were more
variable, but were unable to show that the overall actual
nitrogen oxide emissions from plants complying with the 0.1
twenty-four-hour limitation was the same as the emission from
plants that complied with the lower thirty-day average. That is,
the Division could not show that the Power Company’s facility
would operate at thirty percent or more below its twenty-four
hour emission limit. Without such evidence, we hold that it was
unreasonable for the agency to adopt the 0.1 twenty-four hour
emission limitation when there was evidence that a lower overall
emission limitation was achievable; therefore we set aside the
Division’s determination that this standard was BACT for nitrogen
oxides.
V. THE DIVISION DID NOT NEED TO UNDERTAKE FORMAL RULEMAKING
PROCEDURES TO ADOPT THE SIGNIFICANT IMPACT LEVEL POLICY
¶49 In the midst of reviewing the Power Company’s
application for a PSD permit, the Secretary adopted, via an
interoffice memorandum, a significant impact levels policy for
Class I increment analyses required by the PSD program. The
significant impact level policy excludes from the regularly
required cumulative Class I increment analysis emissions from a
proposed source that model below a value identified by the

13 In Williams we interpreted the predecessor to the Utah
Rulemaking Act. However, as we recognized then and in subsequent
cases, the analysis is the same under either version of the Act.
C.P. v. Utah Office of Crime Victims’ Reparations, 966 P.2d 1226,
1230 n.5 (Utah 1998).
14 Amended in 2006 to incorporate, by reference, the
provisions of 40 C.F.R. § 52.21(e), effective March 3, 2003.
23 No. 20080113
Division as de minimis. The Sierra Club argues that this policy
is invalid because it was not adopted pursuant to the Utah
Rulemaking Act, Utah Code Ann. § 63G-3-101 to -702 (Supp. 2008).
We hold that formal rulemaking was not required when the agency’s
action did not constitute a fundamental policy change but instead
served as technical guidance for the implementation of an already
existing administrative rule.
¶50 The Utah Administrative Rulemaking Act requires an
agency to undertake formal rulemaking procedures when “issu[ing]
a written interpretation of state or federal mandate” but not
when “an agency issues policy or other statements that are
advisory, informative, or descriptive.” Utah Code Ann. § 63G-3-
201(3), (4). When determining whether rulemaking is required
under the statute, we focus our attention on whether an agency
action amounts to a rule. Williams v. Pub. Serv. Comm’n, 720
P.2d 773, 776 (Utah 1986).13 Defined both statutorily and in
case law, a rule is a policy or statement that is generally
applicable, implements or interprets law, and results in a change
in clear law. Id. at 776-77; see also Utah Code Ann. § 63G-3-
102(16). Conversely, an agency action is not a rule when it
provides informal guidelines for implementing agency rules or
answers a technical question within the agency’s expertise. Gray
v. Dep’t of Employment Sec., 681 P.2d 807, 815-16 (Utah 1984).
¶51 In this case, the policy adopted via interoffice
memorandum is not easily categorized. There is little room to
debate that the policy is generally applicable. As described in
the memorandum, the significant impact levels analysis is a
“matter of policy” that will apply to all new sources subject to
the PSD program. Whether it is an interpretation or
implementation of law is a much closer question. We conclude
that it is a technical guideline for implementing existing
interpretation and implementation of the Utah Conservation Act
and the Clean Air Act and is not subject to formal rulemaking
procedures. Critical to our conclusion is the fact that the
significant impact levels policy does not by itself impose new
requirements on applicants for PSD permits or the Division. Rule
307-405-6(2)14 requires the Secretary to determine the impact of
the new source on the air quality in the area. Where

No. 20080113 24
practicable, this review should “take into account” the
cumulative effect of all sources and growth in the affected area.
Id. The significant impact levels policy does not interpret or
alter this rule. Instead, it provides internal guidance for the
Division for determining compliance with existing administrative
rules. Although it appears that it will be applied in a standard
fashion, it is not binding on the Division. Should the Division
determine that a complete cumulative analysis is warranted, the
significant impact levels analysis in no way prevents it from
conducting such analysis.
¶52 Still, the Sierra Club argues that this new guidance is
a clear change in the law because previously the Division
conducted a complete cumulative analysis for all new sources
affecting Class I areas. A change in how compliance is measured
as opposed to what is required of a party is not a clear change
in law requiring rulemaking but instead an internal governance
issue on which we defer to the agency. The difference between
the facts in Williams and this case illustrates the distinction.
In Williams, the Public Service Commission exercised jurisdiction
over mobile telephone paging services for an extended period of
time and as part of that process required operators to obtain
certificates of public service and convenience. 720 P.2d at 774.
Then the Federal Communications Commission deregulated radio
frequencies for use in paging services. Id. In correspondence
replying to a service provider asking whether it was required to
obtain a certificate, the Commission indicated that it no longer
had jurisdiction over paging services using radio frequencies and
therefore the certificates were no longer required. Id. We
concluded that this complete reversal of the requirements imposed
on service providers was a “fundamental policy change” that
required formal rulemaking. Id. at 777. The action taken by the
Division in this case is quite different. Rather than reversing
a longstanding position, the memorandum issued by the Secretary
instead changed a procedure for applying a longstanding rule.
The requirements imposed on parties and the Division remained the
same--new sources could not exceed the increment limits and the
Division was required to determine the impact of the new source
on the air quality and whether the increments would be exceeded.
Therefore, we conclude that the Board did not err in concluding
that the adoption of the significant impact levels did not
require formal rulemaking.
¶53 Finally, the Sierra Club argues that, even if
rulemaking was not required, the significant impact levels policy
is invalid because it fails to satisfy the requirement of rule
307-405-6 that the Division’s review “shall take into account all
allowable emissions of approved sources or modifications whether
constructed or not.” The significant impact levels policy as

25 No. 20080113
presented to this court does not violate this rule. The rule
requires a review to determine whether a source will violate the
allowable incremental increases or the national ambient air
quality standards. Because we have determined that the
significant impact levels policy was properly adopted we need not
consider the Sierra Club’s arguments relating to the cumulative
Class I analysis.
VI. CUMULATIVE ERROR DOCTRINE DOES NOT APPLY
TO THE ARGUMENTS RAISED BY THE SIERRA CLUB
¶54 Finally, the Sierra Club argues that the cumulative
error doctrine should be applied to the Board’s decision. Again,
this was an unpreserved argument. Under the cumulative error
doctrine, we reverse only when “‘the cumulative effect of the
several errors undermines our confidence . . . that a fair trial
was had.’” State v. Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (quoting
State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993). The Sierra Club
presented numerous arguments as to why the errors it alleged the
Board committed, only some of which we have determined to have
been actual error, were prejudicial. However, none of these
arguments go to the fairness of the proceedings below.
Therefore, we decline to address the preservation issue when on
the face of the Sierra Club’s arguments, the cumulative error
doctrine does not apply.
CONCLUSION
¶55 The Sierra Club asserted numerous errors that occurred
in the Board’s review of the approval order the Division issued
to the Power Company. We affirm in part, and reverse in part.
First, we agree with the Board that the federal enforcement
provision found in 40 C.F.R. § 52.21 was not incorporated into
the Utah PSD rules at the time the Power Company’s PSD permit was
issued. However, we hold that the Board’s interpretation of
Utah’s rules was unreasonable when, despite the discretion given
to the Secretary, the Division and Board interpreted Utah’s PSD
enforcement provision in a way that failed to achieve the
purposes of the PSD program. Therefore, we reverse and remand to
the Division to conduct a new review. This review must ensure
that the approval order encompasses the most current control
technology and must assign a reasonable deadline for the
construction of the Power Company’s facility that avoids tying up
the PSD increments longer than necessary.
¶56 Second, we hold that the Board did not err in
concluding that carbon dioxide was not subject to BACT when
reasonable policy concerns supported their interpretation of the
BACT analysis requirement. Third, we hold that the Board erred

No. 20080113 26
in determining that IGCC need not be considered as part of BACT.
We conclude that IGCC is an available control technology that the
plain language of the BACT definition indicates should be
considered. Therefore, we set aside the BACT review and remand
to the Division to conduct a BACT analysis that considers IGCC as
an available control strategy. Additionally, we hold that the
Board erred in affirming the emission limitation determined by
the BACT analysis for nitrogen oxides when the Division failed to
provide sufficient evidence that the emission limitation level
set was equivalent to lower emission limitations determined by a
different modeling period. We set aside this decision.
¶57 Fifth, we hold that the Board did not err in affirming
the Division’s adoption of the significant impact levels policy,
which was an internal guidance policy that did not require formal
rulemaking. For this reason, we decline to review the Sierra
Club’s arguments regarding the cumulative increment analysis
performed for the Class I areas affected the Power Company’s
proposed facility.
¶58 Finally, we decline to address the Sierra Club’s
argument that sufficient errors were committed below to
constitute cumulative error. The Sierra Club’s argument on its
face does not support this argument because the Sierra Club did
not argue that anything in the proceedings below suggested that
the Board’s review of the Power Company’s approval order was
unfair.
---
¶59 Associate Chief Justice Durrant, Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Chief Justice
Durham’s opinion.