American Public Power Association
Washington, DC
April 27, 2010
Leslie Sue Ritts, RITTS LAW GROUP, PLLC
lsritts@rittslawgroup.com
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PSD & BACT Framework
◦ 1987 Top-Down BACT Guidance for
Traditional Pollutants
◦ State and EPA Review
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EPA’s 2009-2010 BACT Workgroup
◦ February Report
◦ February CAAAC Recommendations
◦ Phase 2 Workgroup?
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Recent BACT Determinations
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◦ Best Available Control Technology means an
emission limitation based on the maximum degree of
reduction of each pollutant subject to regulation
under this Act emitted from or which results from
any major emitting facility, which the permitting
authority, on a case-by-case basis, taking into
account energy, environmental and economic
impacts and other costs, determines is achievable
for such facility through application of production
processes and available methods, systems and
techniques, including fuel cleaning, clean fuels, or
treatment or innovative fuel combustion techniques
for control of each such pollutant. CAA, Section
169; 42 USC 7549.
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BACT is a “case-by-case determination”
BACT is an enforceable & continuous “emission limit
(i.e., an emissions rate or percent reduction achieved) ”
BACT does not change the “source” that the
applicant proposes to build or modify: See, e.g., In re:
Desert Rock Energy Company, LLC, PSD Appeal No. 08-
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03 et aI, slip op. at 59-65 (EAB, September 24, 2009).
BACT only applies to the emission units that are
being physically or operationally changed (i.e., not
“debottlenecked units”)
A BACT/LAER determination is not set until the
final permit is issued
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1.
2.
3.
4.
5.
Identify All Control Technologies for Similar
Sources (http://cfpub.epa.gov/RBLC/)
Eliminate Technically Infeasible Options Based on
Physical, Chemical and Other Engineering Principles
Technically Infeasible for Your Source
Rank Remaining Control Technologies by ControlEffectiveness
Evaluate Most Effective Controls (case by case
consideration of energy , environmental and
economic impacts (http://www.epa.gov/ttn/catc/products.html#cccinfo)
SELECT BACT
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BWG Charge –to identify and discuss major
issues and potential barriers to implementing the PSD
Program under the CAA for GHGs.
Focus on the BACT requirement, including information
and guidance that would be useful for EPA to provide
concerning the technical, economic, and
environmental performance characteristics of
potential BACT options
Identify and discuss approaches to enable state and
local permitting authorities to apply the BACT criteria
in a consistent, practical and efficient manner
Explore new and innovative approaches that can be
incorporated in the BACT analysis within the
framework of the current Clean Air Act.”
◦ BWG Feb. Phase I Report and Work Products are posted at:
http://www.epa.gov/air/caaac/climatechangewg.html
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Scope of Analysis & Defining the Source
Criteria for Determining When a
Technology is Feasible
Criteria for Eliminating Technologies
Stakeholder Needs: States and
Applicants
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BWG agreed that BACT only should be applied to
the units at an existing facility that are being
physically or operationally changed
However, to utilize energy efficiency as BACT,
BWG agreed it might be necessary to broaden the
definition of a “source, ” but disagreed on how;
Environmental groups and vendors staked out
legal arguments that the Clean Air Act’s
definition of BACT required consideration of
different processes that inherently could
change the definition of source to allow
different fuels and project designs. Industry
countered that that concept allowed BACT to
fundamentally change nature of their businesses.
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BWG concurred that the technical feasibility element
of BACT review could “chill” pollution control
innovation and disagreed that whether that policy
should be changed for GHG BACT
BWG agreed that EPA needed to do a better job in
updating the RBL Clearinghouse and incentivizing
pollution control innovation, but DISAGREED
WHETHER CCS, energy efficiency, and “clean fuels”
should be considered in a GHG BACT analysis.
BWG disagreed when a technology becomes “available”
in a production setting, the value or lack of value
conferred by vendor guarantees, and what
commercial scale means for purposes of eliminating
certain BACT options from further review.
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Agreed CCS could be BACT if feasibility of both capture
and sequestration systems could be demonstrated.
Agreed “feasibility” of sequestration had to consider
general technical feasibility and site-specific feasibility,
including physical and legal availability of sequestration
capacity
Agreed that lack of sequestration on or near a proposed
site would be insufficient justification from eliminating CCS
from consideration as a technically feasible option & piping
had to be considered in the economic, environmental and
energy portion of a BACT analysis
Disagreed how availability of existing CO2 pipelines should
be considered and whether a project should be relocated as
part of the BACT analysis.
Disagreed on how many CCS systems must be in use to be
considered demonstrated or available or how to dissect the
issue of what flue gas characteristics established similarity
for purposes BACT technology transfer.
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Agreed that energy efficiency was important
for BACT as a factor in evaluating BACT
alternatives and setting emission limits, so
long as it was agreed that the source
remained the same for purposes of applying
BACT.
Agreed energy efficiency deteriorated with
age, but no consensus could be reached on
the scope of energy efficiency analysis.
Agreed EPA should develop a BACT policy
for considering energy efficiency.
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Agreed “clean fuels” were included in
the Act and charged EPA with providing
guidance on the issue
Disagreed on whether biomass was fuel
neutral, and concern expressed about
using clean fuels to redesign a project
Disagreed how broad the application of
gas and other clean fuels should be
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Agreed parasitic load increase should be
considered and important to give full
consideration to beneficial or adverse
impacts on the environment, most
particularly water resources.
Disagreed whether energy-related
considerations were those around a facility
or limited to those within a source owner’s
control.
Disagreed about the role of in a BACT
analysis the use of over-fired air and regular
boiler tune-ups for reducing fuel use and
GHG
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Disagreed whether acceptable index of
GHG BACT costs should of $3-$15
(Industry) or CO2e effectiveness values
were acceptable in the range of $30$150 for coal-fired CCS (States and
Environmental Groups).
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BWG Directed EPA To Provide Guidance on Specific
Industry-Specific Approaches/ Technologies for GHG
reductions, including:
◦ Pollution prevention measures;
◦ Efficiency improving technologies for new and
existing industry sectors
◦ Emission factors so common baselines can be used in
assessing technologies
◦ Fugitive emission factors and controls
◦ Bio-fuel effects on GHG emissions monitoring
requirements, averaging times, and compliance test
methods
◦ Accepted control techniques for GHGs other than
Co2, and
◦ Ranking GHGs such that pollutant
substitution/tradeoffs can be considered.
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Calpine BACT Determination – Energy Efficiency
for Gas-Fired IGCC Unit
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Sithe Global Power has reportedly has
replaced plans to burn natural gas instead
of coal and use photovoltaic solar cells for
50 to 100 megawatts' worth of electricity
from its Toquop operation
Cash Creek, KY – State & Applicant Must Redo
BACT Analysis (IGCC application based on
Process to Use Coal to produce syngas as
primary fuel and natural gas is secondary
fuel -12/6/2009 EAB).
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http://www.epa.gov/region07/air/title5/petitiondb/petitions/cashcreek_response2008.pdf
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DISCUSSION of OTHERS???
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Leslie Sue Ritts
RITTS LAW GROUP, PLLC
703-823-2292
lsritts@rittslawgroup.com
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