13th ABA Section of Environment, Energy, and Resources Fall Meeting, Nashville, Tennessee, September 21-25, 2005

Protection of PSD Increments: A New Frontier
Prevention of Significant Deterioration (PSD) rules cap pollution levels in all areas of the country, often at levels far below the National Ambient Air Quality Standards. Environmental groups are increasingly filing cases based on a "protection of increments" theory, especially where national parks and wilderness are affected. In addition, several states have commenced efforts to review compliance with the PSD increments caps in light of past and projected future growth. This panel will explain the intricacies of PSD increments and the issues they present in litigation.

Understanding Trading Programs and Policy Through an Evaluation of EPA's Mercury Trading Program
To control mercury emissions from power plants EPA developed a cap-and-trade program under Section 111 of the Clean Air Act. The program will provide a discussion on (1) the fundamental criteria that are essential to any successful emissions trading program; (2) the practical aspects on the final rule; (3) the EPA's regulatory design of the mercury trading program and how it may apply as a model for future EPA trading programs. The discussion will address such policy considerations as: the nature and quantities of the element to be traded; regulatory targets for emission reductions, the importance of geographic location and the possibility of emission "hotspots"; quantification and verification aspects of the amount being traded; and how the trading market will be developed and implemented.

Hot Topics - EPA's Clear Air Interstate Rule
by Joseph Suich, General Electric Company, Counsel, EHS Transactions

33rd ABA Conference on Environmental Law, Keystone, Colorado, March 11-14, 2004

Trading Air Emissions

"Abating Interstate Air Pollution" by Vicki Patton, Environmental Defense

11th ABA Section of Environment, Energy and Resources Fall Meeting, Washington, DC, October 8-12, 2003

Title V Update: And the Judgment Is......

"Judicial Review of Title V Permits" by Kathryn B. Thomson, Sidley, Austin, Brown & Wood, LLP

"Summary of the Permittee's Title V Permit Appeal Issues" by Matthew O. Tanzer, General Electric Company and Charles H. Knauss, Swidler Berlin Shereff Friedman, LLP

"Summary of Blissful Citizens for the Environment Closing Arguments in re: Title V Permit for ABC Generating Station" by Tracy Peel, New York Public Interest Research Group Fund, Inc.

"Summary of the Bliss Department of Environmental Protection Response to Arguments in re: Title V Permit for ABC Generating Station" by Lisa Wilkinson, New York State Department of Environmental Conservation

32nd Annual ABA Conference on Environmental Law, Keystone, Colorado, March 13-16, 2003

Air Quality Mixed Bag: Four Hot Topics

"National Emissions Standards for Hazardous Air Pollutants, General Provisions and 112(j): Will We Ever Make It to the Destination?" by Patricia McGee, E.I. du Pont Nemours and Company

"Nonattainment: New Deadlines, New Challenges" by A. Stanley Melburg, U.S. EPA

"The Maturing of Title V: Increased Scrutiny of Title V Compliance Certifications And How to Manage the Risk" by Matthew O. Tanzer, General Electric Company

In re: Peabody Western Coal Company, CAA Appeal No. 04-01 issued February 18, 2005. The Environmental Appeals Board denied a petition for review of a Title V permit issued by EPA Region IX to Peabody Western Coal Company for the operation of both Peabody's Black Mesa and Kayenta coal mine facilities. Peabody appealed Region IX's decision not to issue a potential to emit limit for PM₁₀ that would establish the co-located facilities as a synthetic minor source for PSD purposes. In denying a potential to emit limit in the Part 71 permit, Region IX focused on Peabody's use of AP-42 emission factors and assumed control efficiencies as the basis of its proposed estimate of the source's potential to emit, and Region IX concluded that the data underlying the proposed limit lacked technical accuracy and Peabody had not proposed a reliable method of determining compliance with such limit.
View a copy of the decision.

In re: Rochester Public Utilities, PSD Appeal No. 03-03 issued August 3, 2004. On November 16, 2004, EPA announced that the Environmental Appeals Board ("EAB") dismissed a petition for review of the Minnesota Pollution Control Agency's ("MPCA") decision to issue a Prevention of Significant Deterioration ("PSD") permit to Rochester Public Utilities ('RPU") on the grounds that the revised PSD regulations did not change the meaning of "emissions unit," and therefore did not make it necessary for MPCA to require BACT. See 69 Fed. Reg. 67,144. On June 27, 2003, MPCA issued a PSD permit to RPU to construct and operate an underground high-pressure steam line from its Silver Lake Plant to the Mayo Clinic's Prospect Utility Plant (Mayo Plant). The permit allows RPU to tap into existing steam lines at the Silver Lake Plant that currently provide steam for four boilers; and to route that steam through a single pipeline to provide steam to the Mayo Plant. This change does not alter the boilers themselves, but results in annual burning of approximately 73,700 additional tons of coal at RPU. MPCA determined that this project would constitute a "major modification" subject to PSD. The MPCA did not require the use of BACT, determining that there would not be a modification to an "emissions unit." The Minnesota Center for Environmental Advocacy (MCEA) filed a petition for review of this permit with the EAB on July 24, 2003 arguing that the term "emissions unit" encompasses the steam lines as well as the boilers, based on a change to the regulatory definition of "emissions unit" in revisions to the PSD regulations promulgated at 67 FR 80,186 (December 31, 2002). MCEA further argued that MPCA erred by not requiring BACT under this revised definition. View a copy of the decision.

Clean Wisconsin, Inc. v. Wisconsin Public Service Commission, Case No. 03 CV 3478, Dane County Circuit Court, November 29, 2004. A Wisconsin trial court upheld a challenge to a Certificate of Public Convenience and Necessity ("CPCN") issued by the Wisconsin Public Service Commission to the Wisconsin Energy Corporation authorizing the construction of two 615-megawatt pulverized-coal units. The petitioners alleged that the CPCN application was incomplete, and they asserted that various aspects of the CPCN Order were contrary to law. The court concluded that the application was legally deficient because it failed to propose at least two alternative sites for the new plant and it did not include agreements for the use of needed transmission lines. The court also identified several inadequacies in the final CPCN order that were contrary to the applicable law, including a failure to adequately explain why the use of high sulfur coal was preferable to the use of natural gas, oil or low sulfur coal. The Wisconsin Energy Priority Law provides that it is the policy of the state to consider the following options in the listed order to meet energy demands: energy conservation and efficiency, noncombustible renewable energy resources, renewable energy resources, natural gas, oil or low sulfur coal, and high sulfur coal and other carbon-based fuels. The court set aside the CPCN order and remanded the matter back to the Wisconsin Public Service Commission for further proceedings. The Wisconsin Energy Corporation has petitioned the Wisconsin Supreme Court seeking an expedited review of the trial court's decision. View a copy of the decision.

Sierra Club v. Georgia Power Company, Civ. Action No. 3:02-CV-151-JTC (N.D. Ga. December 14, 2004). A federal district court largely granted the plaintiffs' motion for summary judgment with respect to alleged emission exceedances from the defendant's Wansley electric generating station. The plaintiffs' citizen suit action alleged numerous violations of the emission limitations applicable to the two coal-fired units and four natural gas-fired combined cycle units at the plant. The court held that the defendant was not entitled to an affirmative defense for alleged emission exceedances that occurred during startup, shutdown, and malfunction events. The court noted that the Georgia Environmental Protection Division had the enforcement discretion to assess violations for the exceedances pursuant to applicable EPA guidance; however, this enforcement discretion did not constitute an affirmative defense with respect to a citizen suit. Further, the court concluded that opacity monitoring data constituted credible evidence of violations, and such evidence, for the most part, was not refuted by the defendant. View a copy of the decision.