With recent developments in climate change litigation, including the Deseret Power decision, it appears we are moving ever closer to requiring control of CO2 from coal fired power plants and other major sources of CO2. Outgoing EPA Administrator Johnson may have delayed things temporarily by issuing his memo in response to Deseret Power. However, incoming EPA Administrator Jackson has pledged to quickly review the California waiver request that would allow the State to set CO2 emission standards for cars. If that happens, the dominoes will soon fall requiring controls for CO2 for all major sources under the Clean Air Act.
A positive "endangerment finding" in response to the California Waiver request will trigger a host of other regulations. Those would include requiring emission controls from new major sources of CO2 and other greenhouse gases under EPA’s New Source Review permit program.
If new or modified sources are required to control CO2, then as part of their permit they will be required to install Best Available Control Technology (BACT) to reduce CO2 emissions if located in an area that meets federal air quality standards. More stringent limits (Lowest Achievable Emission Rate- LAER) apply in areas that don’t meet air quality standards.
The focus of all the recent litigation has been on whether to require CO2 controls as part of a BACT permit review. But that begs a very interesting question….What would BACT be for CO2?
I was asked this very question during a recent interview I had with a reporter from Inside EPA. That sent me to research the issue. My review shows to things: 1) there is a wide divergence of opinion among experts as to what BACT would likely be; and 2) EPA has a fair amount of discretion to determine the BACT standard for CO2. Once it is decided that BACT must be required to control CO2 (and other greenhouse gases), Industry insiders expect EPA would take at a minimum 6 months to decide the issue.
Reading the tea leaves, I think we can begin to decipher an answer as to what BACT may constitute. We certainly can eliminates some suggestion offered by pundits based upon how EPA has applied the BACT standard in the past. Here is what we know….
- There are no current EPA endorsed technologies for controlling CO2. EPA’s current RACT/BACT/LAER clearinghouse doesn’t have anything on CO2. The clearinghouse is used to identify various control technologies that would be deemed to meet the various standards on specific industries or technologies.
- BACT is a site-specific, case-by-case decision which means uncertainty. In testimony House Government Reform and Oversight Committee, attorneys Peter Glaser and John Cline stated the following: "Since BACT determinations for CO2 have no regulatory history at this time, and can vary by type of facility and from state-to-state, businesses wishing to construct new sources or modify existing ones would have no basis for planning what the regulatory requirements will be."
- Case law and regulatory decisions of EPA establish parameters for the BACT analysis. As detailed below, case law in the context of BACT for coal plants can be extrapolated to CO2. The same general guidelines used to evaluate controls for other pollutants (SO2, CO, mercury, NOx) will be used for CO2.
Now lets turn to a review of experts who have offered their opinion as to which technologies should be considered BACT for CO2. Here is one guess from the blog Cleanergy.org:
BACT for CO2 is unlikely to mean carbon capture and storage (yet), since it’s not readily available, but it will probably mean some combination of co-generation (making use of waste heat from electricity generation), efficiency improvements, and/or fuel switching/co-firing with biomass. Ultimately, President-elect Obama’s EPA gets to decide how BACT is defined for CO2, a process which will take at least a year.
Joseph Romm, author of the blog Climate Progress, offered his opinion of what BACT for CO2 may look like.
Certainly it is going to slow down the permitting of any new coal plant dramatically, until the EPA figures out the answer to the $64 billion question: What is BACT for CO2 for a coal plant? That will probably take the Obama EPA at least 12 months to decide in a rule-making process. But from my perspective it could/should/must include one or more of:
a) Co-firing with biomass — up to 25% cofiring has been demonstrated
b) Highest efficiency plants
c) Cogeneration (i.e. recycled energy)
d) (possibly even) Gasification with, yes, carbon capture and storage (CCS)
Here are some other opinions as to possible technologies that would qualify as BACT for coal-fired power plants:
- Solar Thermal at a Coal Power Plant– mix the steam from solar thermal with steam from the boiler to reduce emissions.
- Highly Efficient Boilers- Jeff Holmstead, former Chief Air Official for U.S. EPA, has said he BACT would be for CO2 right now given costs and development of other control technology.
But let’s look at the legal guidance associated with BACT. In doing so, some of the technologies suggested seem "not ready for prime time" or would not be considered a control technology but rather a different type of generation.
BACT is determined through a case-by-case evaluation of control technology alternatives and involves a complicated weighing of economic, environmental, energy and other factors. BACT can even be no control measure if that weighing process fails to identify a technically and economically feasible technology for controlling the pollutant in question.
A detailed discussion of the permitting process and legal aspects of a BACT analysis is provided below. The single biggest consideration is that BACT takes the project as proposed and establishes the lowest achievable emission rate for the various pollutants.
This means BACT cannot fundamentally change the design of the proposed project. This is why EPA has rejected establishing IGCC as BACT. If the permit applicant is proposing a traditional pulverized coal boiler, then limits must be established based upon what is achievable for that type of boiler.
This eliminates many of the control technologies suggested by pundits:
- IGCC- would force a redesign and would be rejected
- Solar Thermal Combined with a Coal Boiler- would be rejected as forcing a redesign
- Carbon Capture and Storage- This one is interesting. Under BACT you must take the geographical location of the project into consideration. If the geologic considerations would make CCS infeasible for the project it could not be required. In addition, CCS is certainly not ready for prime time and could not be required as part of BACT for any site right now.
Some other technologies are more likely to be considered BACT:
- High Efficiency Boilers- this would likely be required to reduce emissions
- Co-firing with biomass- depending on the project, this could be required. Co-firing reduces CO2 emissions. BACT does involve consideration of "clean fuels", however co-firing biomass would likely be rejected if it caused a major redesign of the facility.
- Coal Drying- By removing moisture from the coal you can reduce CO2 emissions. Similar to co-firing biomass this could be required if it doesn’t force a major redesign of the project.
What are the legal components of a BACT determination?
Here is the Clean Air Act definition of BACT:
The term “best available control technology” means an emission limitation based on the maximum degree of reduction of each pollutant subject to regulation under
this chapter emitted from or which results from any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy,
environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes and available
methods, systems, and techniques, including fuel cleaning, clean fuels, or treatment or innovative fuel combustion techniques for control of each such
EPA’s New Source Review Manual calls for a "top down analysis" of control technologies for each regulated pollutant emitted by the proposed source. All potential control technologies are identified at the start and as you work down the steps you see if any should be eliminated. The most effective control technology remaining after Step 5 is then considered BACT. Here are the five distinct steps of the "top down analysis":
- Identify all potential control options
- Eliminate technology infeasible controls- the control technology must be "demonstrated" to work on a commercial scale over a sufficient period of time.
- Rank remaining control technologies by control efficiency
- Consider the energy, economic and environmental effects of the control technology- proposed technologies can be eliminated based upon cost effectiveness or because they reduced energy efficiency.
- Select the most effective control technology that was not eliminated in Step 4 of the process.
Here are some key considerations that can be gleaned from case law surrounding BACT determinations:
- Case-by-case analysis- Each project is examined on its own. Examine the proposed fuel, type of source and geographic location when establishing emission limits. BACT is not a universal control standard for all projects. Instead, it takes each project case-by-case and determines what is the lowest achievable limit.
- "Achievable"- the established emission limit must have been met on a continual basis. Optimum performance is not the test, rather the limit must be consistently met over a period of time. The limit will often include a "safety factor" or "cushion" to ensure the limit can be met over the life of the facility.
- "Available" control technology- must be demonstrated at a commercial sized source for a sufficient period of time.
- Does not redefine the source- Must look at the proposed design of the project and go from there in setting limits. You cannot force a redesign. For instance, BACT could not require renewable energy generation instead of coal.
- Can consider economic, environmental or energy impacts in eliminating control technologies- cost can be a consideration in choosing a control technology. For instance, if the cost effectiveness of a control technology is low it can be eliminated from consideration.