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Wind and the Environment: The EPA's Tech Divide

Does the Clean Air Act require the agency to consider the most low-emission coal plant technologies in permitting new plants?

Fortnightly Magazine - June 2006

authority must allow an “opportunity for interested persons … to appear and submit written or oral presentations on the air quality impact of such source, alternatives thereto, control technology requirements, and other appropriate considerations.” 5

The EPA previously had not drawn this distinction between analysis of alternatives to a source under Section 165(a)(2) and BACT, and has not promulgated policy or guidance giving content to the alternatives analysis. 6 In a March 7, 2006, brief to the EPA Environmental Appeals Board, however, the EPA has for the first time addressed what it envisions such “alternatives” consideration requires. 7 In the Prairie State Generation case, the EPA was asked by the board to address whether the Illinois EPA, in considering a permit for a new coal-fired plant, was required to consider low-sulfur coal and other alternatives to the proposed source. The EPA, consistent with its IGCC letter, maintained that the “proposed facility” referenced in section 165(a)(4) refers to the specific facility proposed by the applicant, which has certain design characteristics, and not some other facility that is fundamentally different. EPA pointed to its historical approach in which it has found that “the BACT review should not be used to frustrate an applicant’s ability to construct a particular type of facility in order to meet objectives that may be independent of environmental protection.” 8 The EPA argued that requiring Prairie State to fire low-sulfur coal fundamentally would redesign the scope of the project, where the facility was planned and sited to burn fuel from a mine close to the plant.

The EPA went on, however, in its Prairie State brief to interpret section 165(a)(2), for what appears to be the first time, to require the permitting authority “to provide a reasoned response to comments identifying alternatives to the proposed source and raising other appropriate considerations.” 9 The EPA noted that the statute requires a public hearing and an opportunity to comment on alternatives and other appropriate considerations, and concluded that the requirement to respond to such comments is “inherent” in the requirement to provide an opportunity to make the comments.

Although this might suggest an opening to require a reasoned consideration of IGCC, the EPA also appeared to have an eye on that issue in its Prairie State brief, limiting the scope of the requirement in two important respects. First, the EPA explained that the permitting authority has discretion to modify the PSD permit based on comments raising alternatives or other appropriate considerations, “but this is a highly discretionary matter,” suggesting that the permitting authority’s obligation is satisfied by a “reasoned explanation for why it has elected not to exercise its discretion.” 10 Second, the EPA noted that the permitting authority was “not obligated to respond to comments addressing matters outside the scope of the [Clean Air] Act, such as the need for a particular facility.” 11 This comment would appear also to encompass the EPA’s current position that greenhouse gas emissions are outside the scope of the Clean Air Act. 12

A Mixed-State Approach

A number of states also have considered whether IGCC