Transcript Current Issues in BACT

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CURRENT ISSUES IN BACT
Kevin J. Finto
Hunton & Williams
June 28, 2006
APPA New Generation Meeting:
Anticipating new permitting issues,
IGCC, Technology Options, Atmospheric Modeling,
and Anticipating the Public’s Reaction
Washington, D.C.
Current Issues in BACT
Written and Unwritten Definition of
BACT and How it is Applied in
Practice — Commercial Availability,
Achievability, Demonstrated in
Practice
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Current Issues in BACT
What is BACT? (It’s a limit)
Best Available Control Technology means an emissions
limitation (including a visible emission standard) based on
the maximum degree of reduction for each pollutant
subject to regulation under Act which would be emitted
from any proposed major stationary source or major
modification which the Administrator, on a case-by-case
basis, taking into account energy, environmental, and
economic impacts and other costs, determines is
achievable for such source or modification through
application of production processes or available methods,
systems, and techniques, including clean fuels, fuel
cleaning or treatment or innovative fuel combustion
techniques for control of such pollutant. . . .
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Current Issues in BACT
( No, it’s a work practice)
If the Administrator determines that technological or economic
limitations on the application of measurement methodology to
a particular emissions unit would make the imposition of an
emissions standard infeasible, a design, equipment, work
practice, operational standard, or combination thereof, may be
prescribed instead to satisfy the requirement for application of
best available control technology. Such standard shall, to the
degree possible, set forth the emissions reduction achievable
by implementation of such design, equipment, work practice or
operation, and shall provide for compliance by means which
achieve equivalent results.
40 C.F.R. § 52.21(b)(12)
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Current Issues in BACT
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Best Available Control Technology
BACT is an Emission Limit or Work Practice
BACT is a Case-by-Case Analysis
What is “Achievable?”
What is “Available?”
BACT Does Not Redefine the Source
BACT is Done on a Pollutant-by-Pollutant Basis
BACT Considers Multi-Pollutant Effects
BACT Considers Environmental, Energy and Economic
Costs
The Role of Other “Drivers” (e.g., visibility concerns)
The Role of CAA 165(a)(2)
Current Issues in BACT
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Defining the Source
Case-by-Case Analysis
Operational Limits of the “Source”
– Tail Wagging the Dog Problem
– Common ownership
– Contiguous
– Same SIC Code
Restrictions on Construction (e.g., Retrofit)
Restrictions on Operation (e.g., Type of Fuel)
Type of Combustion
Current Issues in BACT
Best Available Control Technology
• Information That Must Be Considered
– Other Permits
– RACT/BACT/LAER Clearinghouse
– Draft or Proposed Permits
– Permit Applications
– NSPS Proposal February 9, 2005
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Current Issues in BACT
Best Available Control Technology
• Other sources
– CEMs Data
– Source Tests
– Foreign Experience
– Vendor Guarantees
– Vendor Literature
• Verify reliability of information and watch for
“folklore” (e.g., compare Sierra Club claims
regarding WA Parish plant with Hendrickson
email)
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Current Issues in BACT
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What is achievable?
BACT is not the lowest level ever recorded
Need for a cushion
What can be achieved under worst-case,
reasonably foreseeable circumstances?
Not the best day or the average day
Long term achievability
See Newmont
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IGCC as BACT
“Defining the Source” the difference in
technologies
EPA letter of December 12, 2005
Appeal of letter pending in the D.C. Circuit
Greg Foote articles and briefs
The CAA 165(a)(2) issue
Practical advice
Current Issues in BACT
Consideration of CO2 Emissions in
Decision-Making Process — How
Far Does the Collateral
Environmental Impact Analysis
Stretch?
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Current Issues in BACT
CO2 in the BACT analysis (Cont.)
• CO2 is not directly regulated through a BACT
analysis because CO2 is not an “air pollutant”
“[T]he CAA does not authorize EPA to regulate for
global climate change purposes, and accordingly
that CO2 and other GHGs cannot be considered “air
pollutants” subject to the CAA’s regulatory provisions
for any contribution they make to global climate
change.”
68 Fed. Reg. 52922, 52925 (Sept. 8, 2003)
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Current Issues in BACT
CO2 in the BACT analysis (Cont.)
• However some states have required analysis
of CO2 as a collateral environmental impact in
the BACT analysis
– Require permittees to consider HAP and
CO2 emissions when considering various
control technologies
– Analysis regarding HAPs consistent with
certain EAB decisions and agency
guidance
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Current Issues in BACT
CO2 in the BACT analysis (Cont.)
EAB Quotes
“There is one exception to the general rule that
pollutants that are not directly regulated by the PSD
program are not subject to PSD review. It is legitimate
to consider unregulated pollutants as collateral
environmental impacts in the context of the BACT
determination.”
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In re South Shore Power, LLC, PSD Appeal No. 03-02,
unpub. op. at 20 n. 11 (EAB June 4, 2003)
Current Issues in BACT
CO2 in the BACT analysis (Cont.)
EAB Quotes
“If a technology has ‘an incidental effect of
increasing or decreasing emissions of
unregulated pollutants,’ consideration of that
effect may be taken into account in selecting
BACT for a facility.”
In re Knauf Fiber Glass, GMBH, 8 E.A.D. 121, 163 n.56 (EAB 1999).
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Current Issues in BACT
CO2 in the BACT analysis (Cont.)
EAB Quotes
“[BACT] requires the permitting authority to take
into account the control technology’s impact on
unregulated pollutants in every permit
proceeding.
In re Hibbing Taconite Co., 2 E.A.D. 838 (Adm’r
1989).
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Current issues in BACT
BACT on Appeal: the current climate
• Challenges are Common
• Opponents are Highly Coordinated
• Process is Maturing
• Properly Supported Permits are being
Upheld
• Think Backwards – “What Will I Need on
Appeal?”
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Current Issues in BACT
BACT on Appeal (Cont.)
• Know the Process and Standard of Review
• “Open” or “Closed” Record?
• Evidentiary Hearing or Briefs?
• De Novo or Deference?
• Burden of Proof?
• Identify Witnesses Early in Process
• Encourage the Agency to Anticipate a
Challenge
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Current Issues in BACT
BACT on Appeal (Cont.)
• Build a Solid Record
• Provide aCCoherent Basis for Each
Permit Determination
• Respond in Detail to Every Comment
• Supplement the Application
• Anticipate Issues and Put Solutions into
the Record
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Current issues in BACT
BACT on Appeal (Cont.)
• Remember Your High School Math Teacher:
“Show Your Work”
• Coordinate with Agency to Build Record
• Lessons from Recent Cases
• Key Part of Record - The Application
• Using the Draft NSR Workshop Manual
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• Rectify Problems Promptly
Current issues in BACT
Conclusions
Through careful analysis and documentation
of all the relevant factors in a BACT analysis,
and close coordination with the permitting
agency, it is possible to develop a
reasonable permit that will survive appeal.
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