By Robynn Andracsek, P.E., Burns & McDonnell and Contributing Editor, and Mary Hauner-Davis, Burns & McDonnell
Greenhouse gas (GHG) regulation is here to stay, as indicated by a tidal wave of recent court rulings and EPA actions. Barring an act of Congress, GHG emissions will be regulated under the Prevention of Significant Deterioration (PSD), Title V, and New Source Performance Standard (NSPS) programs.
First, the Supreme Court’s decision in Massachusetts v EPA clarified that GHGs are an “air pollutant” subject to regulation under the Clean Air Act. Next, EPA’s Endangerment Finding determined that greenhouse gases may “reasonably be anticipated to endanger public health and welfare.” When the Tailpipe Rule set emission standards for cars and light trucks, GHG became a regulated pollutant. This necessitated the Timing and Tailoring Rules, which determined that only the largest stationary sources would initially be subject to permitting requirements. Finally, the proposed GHG NSPS would force new coal-fired boilers to meet the same emissions levels as a natural gas-fired combined cycle turbine, essentially killing new coal plants.
Opposition to this series of rulemakings came to a head in a case decided June 26, 2012 by the D.C. Court of Appeals. The Petitioners challenged EPA on the rulings mentioned above as well as the fact that EPA did not conduct its own assessment of climate science but rather relied upon those conducted by Intergovernmental Panel on Climate Change (IPCC), the U.S. Global Climate Research Program (USGCRP), and the National Research Council (NRC). The Court rejected all of the objections and ruled firmly for EPA, using language that appears to scold the Petitioners for continuing their fight. Quoting Schoolhouse Rock, the Court then dismissed hopes that Congress will take action. “It’s not easy to become a law.”
Of interesting note is that the parties involved read like an episode of Family Feud. The “Petitioners,” who argued against the EPA rules, included the attorneys general from Texas (of course), Virginia, Alabama, Florida, Indiana, Kentucky, Louisiana, Michigan, Nebraska, North Dakota, Oklahoma, South Carolina, Utah, and Kansas. The “Respondents,” who supported EPA’s position, included Massachusetts, California, Delaware, Connecticut, Illinois, Iowa, Maryland, New Hampshire, Maine, Minnesota, New Mexico, New York, Oregon, Washington, Rhode Island, and Vermont. Clearly, the States are not united.
Of minor comfort to industry is EPA’s final rule on Step 3 of the Tailoring Rule, signed June 29, 2012. The rule expands the applicability of plantwide applicability limitations (PALs) for GHG emissions. A GHG-only source is an existing stationary source that emits or has the potential to emit … 100,000 tpy CO2e or more, but does not emit or have the potential to emit any other regulated NSR pollutant at or above the applicable major source threshold. This Minor Source Approach for GHG PALs revises the PAL regulations to allow a GHG-only source to submit an application for a GHG PAL while maintaining its minor source status. The source could only become major for PSD when it proposes to undertake a change that increases GHG emissions by at least 75,000 tpy CO2e, the amount of increase needed under the current Tailoring Rule thresholds.
What does this really mean? Consider the following situation. A peaking plant (simple cycle natural gas-fired combustion turbine) has taken limits to stay below the PSD major source thresholds of 250 tpy for NOx, SO2, PM10, Pm2.5, VOC, and CO. They are classified as PSD minor. When GHGs became a pollutant, it became important to note that actual emissions at the facility are over the PSD major source threshold of 100,000 for CO2e (GHGs), potentially making the facility a PSD major source. The facility wants to add a piece of equipment that will increase NOx by 56 tpy and will also increase CO2e. If the CO2e increase is above 75,000 tpy, then GHG is a regulated pollutant, the plant is an existing major source for PSD, and PSD is triggered for NOx and CO2e. If the CO2e increase is less than 75,000 tpy, then GHG is not a regulated pollutant, the plant is an existing minor source for PSD, and PSD is not triggered.
Essentially, the very confusing PSD applicability rules have become even more tortuous. While EPA has determined that state permitting agencies are not yet able to regulate the millions of sources with GHG emissions above 250 tpy, there remains the threat that EPA will eventually extend PSD to these very small sources.
Having run the gauntlet of emotions- denial, anger, bargaining, and depression – and having giving up hope that Congress will act, it is time to accept that GHG regulation, however convoluted, is here to stay.