EPA Required to
Consider BACT for CO2 Emissions
On November 13, 2008, EPA’s
Environmental Appeals Board (EAB) decided to require
EPA to consider whether Best Available Control Technology (BACT)
for CO2 emissions should be included in a Prevention of Significant
Deterioration (PSD) permit issued for the
construction of a new coal-fired power plant in
The EAB’s decision appears to be contrary to EPA’s position that greenhouse gas (GHG) emissions, including CO2, should not be regulated under the Clean Air Act (CAA). In April 2007, the US Supreme Court, in Massachusetts vs. EPA, found that EPA had the authority to regulate GHG emissions as a pollutant under the CAA, but only if EPA finds that the emissions endanger health or the environment through an endangerment finding. In July 2008, instead of making an endangerment finding, EPA issued the Advanced Notice of Proposed Rulemaking (ANPR), which concludes that Congress should be addressing the control of GHG emissions through new legislation, not the EPA. EPA Administrator Stephen Johnson stated in the preface of the ANPR that the CAA is “ill-suited” for regulation of GHG emissions, and regulating GHG emissions through the CAA would result in a “very complicated, time-consuming, and likely, convoluted set of regulations”. The ANPR details the significant challenges EPA would face if GHG were regulated under the CAA.
The EAB’s decision did not require EPA to impose BACT for CO2, nor did it state whether the CAA should include regulations for GHG emissions, but it does require EPA to consider whether CO2 is a pollutant subject to regulation under the CAA, and hence whether CO2 BACT is required in permitting decisions. The EAB also instructed EPA to consider the nationwide implications of their decision. The implications could be huge, considering that even small combustion units can emit CO2 above the major source level.
kcoy@air-comp.com
Air/Compliance Consultants, Inc.
www.air-comp.com