Sunday, December 21, 2008
According to Trish McCubbin (HT comments on Envlawprofessors), EPA Administrator Steve Johnson issued a memo Thursday finding that CO2 is not a "regulated" pollutant for purposes of the PSD program, meaning that new or modified power plants do not have to install control technology for CO2 emissions. McCubbin points out that the memo responds to a decision last month by the Environmental Appeals Board in the Deseret Power matter that raised the issue -- without deciding -- whether CO2 is a "regulated" pollutant because power plants are required to monitor CO2 emissions under the 1990 Amendments. Johnson determined that mere monitoring requirements do not make a pollutant "regulated" for PSD purposes: he concluded that the PSD BACT and other requirement s are only applicable to pollutants subject to emission limits under other provisions of the Act. Johnson's memo is on EPA's website: Johnson memo re: applicability of PSD to CO2 . EPA's conclusion may be legally correct, but only because EPA has acted so irresponsibly with respect to regulating CO2. However, there are state programs that do regulate CO2 and thus the Johnson memo is not necessarily the last word on PSD applicability. Remember when state NSR and the national NSR programs parted ways in the mid-1990s. EPA at that time said that a state program with more stringent NSR requirements provided the NSR requirements for purposes of CAA enforcement.