On February 18th another permit, Northern Michigan University Ripley Heating Plant, for a new coal facility was remanded by U.S. EPA’s Environmental Board of Review. The Board remanded the permit because the State (the Michigan Department of Environmental Quality), in issuing the permit, failed to address whether CO2 was a regulated pollutant under the Clean Air
May you live in interesting times….Yesterday EPA Administrator Jackson issued a letter granting the Sierra Club’s petition for reconsideration of a Deseret Power memo issued by former EPA Administrator Johnson. The Petition seeks reconsideration of the Johnson memo which interpreted EPA regulations defining the pollutants covered by federal permitting under the Clean Air Act. The Johnson…
In remarks titled "from peril to progress", the President set forth bold action yesterday that will inevitably lead to full regulation of CO2 and greenhouse gas emissions. The President ordered a "vigorous review" of California’s request to regulate greenhouse gas emissions which had been previously denied by the Bush Administration. [President Obama’s memo ordering a…
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.
On January 15, 2009 the Sierra Club filed a petition in the D.C. Circuit Court of Appeals challenging EPA Administrator Johnson’s memo in response to Deseret Power. The petition seeks the Court to throw out the Johnson memo. The memo would allow current permits to proceed without considering controls for CO2 or other greenhouse gases.
Perhaps its obvious that the window of opportunity to obtain an air permit without CO2 controls is closing quickly. Don’t delude yourself that controls will wait for Congressional action on climate change.
The battle over requiring CO2 controls without additional rulemaking or legislation is being waged right now. The saga is being played out…
Senator Barbara Boxer sent a letter to the Department of Justice demanding withdraw of what she calls a "blatantly illegal memo" issued by EPA Administrator Steve Johnson in response to the Deseret Power decision. The memo says that CO2 (and other greenhouse gases-GHGs) are not yet regulated pollutants under the Clean Air Act. As…
When the Environmental Review Board (EAB) issued its decision in Deseret Power, the Sierra Club and many others across the Internet declared victory claiming the decision would block permits for new coal fired power plants for the immediate future. Looks like they may have been premature…
The EPA issued a significant interpretive memorandum in response to the Deseret Power…
Talk about your pro-bowl quality punts…U.S. EPA’s Environmental Appeals Board made a major one this week on the issue of climate change. All eyes were fixated on the Board waiting for their decision on whether the Clean Air Act requires immediate regulation of greenhouse gases (GHGs-which include CO2). The Board’s answer? We would rather…