News / Resources

By Maureen A. Brennan

On January 2, 2011, states will start issuing Title V and PSD air permits requiring Best Available Control Technology for new and modified major sources emitting more than 75,000 tons a year* of Greenhouse Gases (GHG). See the 97-page PSD and Title V Permitting Guidance for Greenhouse Gases, Office of Air & Remediation, November 2010 (the Guidance). U.S. EPA will accept comments on the Guidance for two weeks after it is published in the Federal Register. Contact David Svendsgaard at 919.541.2380 or . Although the Guidance will affect a rather limited number of facilities in 2011, the Guidance may be applied in the future to facilities with much lower emissions if Congress does not act to curb U.S. EPA’s extension of its authority. In other words, many more facilities may be affected in the future.

WHAT FACILITIES ARE COVERED?

According to U.S. EPA’s Clean Air Act Permitting for Greenhouse Gases: Guidance and Technical Information Questions and Answers, Questions 15 and 16:

15. How will GHG permitting affect my Title V permit?

• Starting January 2, 2011, sources with title V permits will be required to address GHGs as part of their title V permits actions. The title V regulations require that title V permits contain all Clean Air Act applicable requirements to which the source is subject.
• Existing sources would not need to include GHGs in the Title V permit until their permit is renewed or they make a major modification that increases emissions above 75,000 tons per year of CO₂e.
• As a general matter, in the case of GHG emissions, the only applicable requirement a title V source would need to add to their permit would best available control technology (BACT) requirements resulting from PSD review if the source triggered such requirements. Otherwise, there are some application requirements under title V that could require the source to describe or estimate their level of GHG emissions.

16. Under what conditions will I need to get a Title V permit?

• Starting July 1, 2011, a new source of GHG emissions that exceeds the thresholds in the final Tailoring rule (100,000 tons per year (tpy) of CO₂e for a new source and 100,000 tpy CO₂e and 75,000 tpy CO₂e resulting from a modification) will be required to obtain a title V permit.

According to U.S. EPA, between January 2, 2011, and June 30, 2011, the Agency will not require new Title V permits based only on GHG emissions.

WHAT IS GHG BACT?

Energy efficiency is the first place regulators are supposed to look for GHG reductions. Using the traditional BACT selection process energy efficiency measures are likely to be identified as BACT.

The Guidance does not require the use of carbon capture and sequestration (CCS) as a GHG control measure. At this point, U.S. EPA is not defining CCS as best available technology per se and, following the BACT selection process, it is unlikely that a regulator would choose it as BACT in most cases. The Guidance also encourages business to use biomass fuels to achieve GHG reductions. In certain circumstances a permit issuing authority can determine that switching to biomass fuels is BACT to control GHGs. Switching from coal to natural gas is not BACT, per se, but can be a BACT option.

WHAT RESOURCES ARE AVAILABLE TO ASSIST FACILITIES TO COMPLY WITH THE GUIDANCE?

U.S. EPA provides basic technical information on control techniques that reduce GHG emissions in a series of industry-focused white papers available online. U.S. EPA’s RACT/BACT/LEAR Clearinghouse will now contain information on pollution control measures for GHGs. Ilaim Rosario at 919.541.5308 or can provide information on the additions the Clearinghouse regarding GHG pollution control devices.

We hope you find this information helpful. Please contact any Baker Hostetler Environmental and Energy attorney with questions.

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* The statutory thresholds defining major statutory sources is 100 and 250 tons. U.S. EPA’s fact sheet says these thresholds "were based on traditional pollutants and were not designed to be applied to GHGs." Clean Air Act Permitting for Greenhouse Gases, Nov. 10, 2010. U.S. EPA’s decision to use higher thresholds to trigger permits based on GHG emissions is being challenged in court.

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