EPA Appeals Board Sets Stage For CO2 Pollutant Regulation

Nov 13: In a move that Sierra Club says "signals the start of the our clean energy future," the U.S. EPA's Environmental Appeals Board (EAB) ruled that EPA had no valid reason for refusing to limit from new coal-fired power plants the carbon dioxide emissions that cause global warming. The decision means that all new and proposed coal plants nationwide must go back and address their carbon dioxide emissions. In the case, Sierra Club sought review of a prevention of significant deterioration (PSD) permit that EPA Region 8 issued to Deseret Power Electric Cooperative on August 30, 2007. The permit would authorize Deseret to construct a new waste-coal-fired electric generating unit at Deseret’s existing Bonanza Power Plant, located near Bonanza, Utah.

The highly controversial case involved interventions by National Association of Manufacturers (NAM), the American Petroleum Institute and U.S. Chamber of Commerce who joined in filing the brief in the appeals supporting construction of the new power plant and arguing the U.S. EPA's permitting process should not be turned into a regulatory tool to control carbon dioxide (CO2) emissions [See WIMS 3/26/08].

Joanne Spalding, Sierra Club Senior Attorney who argued the case said, “Today’s decision opens the way for meaningful action to fight global warming and is a major step in bringing about a clean energy economy. This is one more sign that we must begin repowering, refueling and rebuilding America. The EAB rejected every Bush Administration excuse for failing to regulate the largest source of greenhouse gases in the United States. This decision gives the Obama Administration a clean slate to begin building our clean energy economy for the 21st century.”

The Deseret Power facility has also been the subject of an investigation of the House Committee on Oversight and Government Concern, Chaired by Representative Henry Waxman (D-CA) which held a hearing on November 8, 2007, regarding EPA Approval of New Power Plants: Failure to Address Global Warming Pollutants. The hearing examined the implications of U.S. EPA's refusal to consider the global warming effects of a coal-fired power plant’s greenhouse gas emissions in a recent permitting decision in light of the recent U.S. Supreme Court decision in Massachusetts v. EPA [See WIMS 4/2/07]. On March 11, 2008, Waxman introduced H.R. 5575, to require new coal-fired electric generating units to use state-of-the-art control technology to capture and permanently sequester carbon dioxide emissions.

The Sierra Club went before the Environmental Appeals Board in May of 2008 to request that the air permit for Deseret Power Electric Cooperative’s proposed waste coal-fired power plant be overturned because it failed to require any controls on carbon dioxide pollution. Deseret Power’s 110 MW Bonanza plant would have emitted 3.37 million tons of carbon dioxide each year.

Bruce Nilles, Director of the Sierra Club’s National Coal Campaign said, “Coal plants emit 30% of our nation’s global warming pollution. Building new coal plants without controlling their carbon emissions could wipe out all of the other efforts being undertaken by cities, states and communities across the country. Everyone has a role to play and it’s time that the coal industry did its part and started living up to its clean coal rhetoric. Instead of pouring good money after bad trying to fix old coal technology, investors should be looking to wind, solar and energy efficiency technologies that are going to power the economy, create jobs, and help the climate recover.”

The Environmental Appeals Board said the Sierra Club petition raised two issues. First, Sierra Club argues that the Region’s permitting decision violates the public participation provisions of Clean Air Act (CAA) section 165(a)(2), which require the Agency to consider “alternatives” to the proposed facility. Sierra Club argued that the Region erred by failing to consider alternatives to the proposed facility. Second, Sierra Club argues that the Region violated CAA sections 165(a)(4) and 169(3) by failing to apply best available control technology (BACT), to limit carbon dioxide (CO2) emissions from the facility. Sierra Club pointed to the Supreme Court’s decision in Massachusetts v. EPA, contending that because CO2 is an air pollutant, the permit violates the requirement to include a BACT emissions limit for “each pollutant subject to regulation under CAA.

The Appeals Board indicated that it, ". . . denies review of the Region’s alleged failure to consider alternatives to the proposed facility, but remands the permit to the Region for it to reconsider whether to impose a CO2 BACT limit and to develop an adequate record for its decision."

Clarifying further, the Appeals Board said, "Having determined that the Region has discretion under the statute to interpret the term 'subject to regulation under this Act' and that the Region wrongly believed that its discretion was limited by an historical Agency interpretation, the Board remands the permit to the Region for it to reconsider whether to impose a CO2 BACT limit and to develop an adequate record for its decision. In remanding this permit to the Region for reconsideration of its conclusions regarding application of BACT to limit CO2 emissions, the Board recognizes that this is an issue of national scope that has implications far beyond this individual permitting proceeding. The Board suggests that the Region consider whether interested persons, as well as the Agency, would be better served by the Agency addressing the interpretation of the phrase 'subject to regulation under this Act' in the context of an action of nationwide scope, rather than through this specific permitting proceeding."

Access a release from Sierra Club with links to additional information (click here). Access the Environmental Appeals Board 69-page Deseret Power decision (click here). Access the Environmental Appeals Board Deseret Power website with links to all of the extensive briefs and filings in the case (click here). Access the SourceWatch Coal Issues Portal (click here). Access the Sierra Club data (click here). [*Energy, *Air, *Climate]