Earthjustice Petitions EPA to Revoke BACT Permit for Failure to Cover GHGs

Earthjustice announced on Tuesday that it filed a petition with EPA on behalf of National Parks Conservation Association (NPCA), Sierra Club, and Northwest Environmental Defense Center, challenging PSD and MACT permits granted to the TransAlta Coal-Fired Power Plant in Centralia, Washington, for failure to adequately control for NOx, mercury, and CO2.

In a joint press release, the groups announced that they had filed the petition for EPA review of the permit, granted by the Southwest Washington Clean Air Agency. The permit apparently failed to require best available control technology (BACT) for NOx control under the prevention of significant deterioration (PSD) provisions of the Clean Air Act (CAA), see CAA §§160-169, codified at 42 USC §§7470-7479, and maximum available control technology (MACT) for mercury under the Act's hazardous air pollutants provisions. See CAA § 112, 42 U.S.C. § 7412.

This is all standard stuff (although it is surprising how reluctant state agencies are to faithfully apply these provisions on behalf of the federal government, as they are supposed to under the CAA's cooperative federalist scheme.) More interesting, as part of an ongoing environmental community effort to force the EPA to use the CAA to regulate greenhouse gas emissions, is the contention in the petition that the permit has to be revised because it fails to require BACT for CO2. As explained in this earlier post, the argument being advanced is that the BACT requirements apply to CO2 in light of Massachusetts v. EPA, in which the Supreme Court held that CO2 was a "pollutant" within the meaning of the term in the CAA. Environmental litigators are pushing the argument that CO2 is therefore a pollutant that is "subject to regulation" under the CAA and so subject to BACT. See CAA § 165(a) (requiring BACT be installed preconstruction for all pollutants "subject to regulation under this chapter.").

In its October 19th Order In the Matter of BP Products North America Whiting Business Unit, EPA's Environmental Appeals Board (EAB) declined to go as far as to say that BACT covers CO2. Instead, it stated that "at this time EPA continues to construe" BACT to cover only those pollutants "subject to either a provision in the Clean Air Act or a regulation adopted by EPA under the Clean Air Act that requires actual control of emissions of that pollutant." As I said at the time, the EAB's phrasing opens the door to the possibility that EPA may change its interpretation in the future. And with petitions like that filed by Earthjustice, NPCA et al this week, the environmental community keeps giving it the opportunity to do so.