STATUS: In progress, with opposition
OPPOSITION: Sierra Club, Environmental Defense Fund
BACKGROUND: In 2004 the developer applied for a PSD permit to build a new 110 megawatt waste coal-fired unit at the Bonanza Power Plant. In its April 2007 decision in Massachusetts v. EPA, the U.S. Supreme Court held CO2is an “air pollutant” as defined by the Clean Air Act (CAA). In August the U.S. Environmental Protection Agency (EPA) issued the PSD permit stating Massachusetts v. EPA did not require CO2 emissions provisions. Sierra Club appealed to the Environmental Appeals Board (EAB) claiming EPA violated the CAA by issuing the permit without best available control technology (BACT) for CO2 emissions. In November 2008, EAB rejected EPA’s rationale for not applying BACT to CO2 emissions, but also stated statutory ambiguity made the question an appropriate subject for EPA interpretation – in other words, EPA was required to review the issue and make a project specific determination. In December, EPA issued the “Johnson Memorandum” concluding that PSD regulations apply only to those pollutants for which EPA had established actual emissions controls, which, at the time, did not include CO2. In March 2010, EPA issued a final rule affirming the Johnson Memorandum and stating PSD and Title V permitting requirements apply to a newly regulated pollutant such as CO2 when and only when a regulatory control on emissions of that pollutant “takes effect.”
The project has not moved forward in the years since EAB issued its ruling.
LAST UPDATED: December 7, 2010