Comments Regarding the Environmental Protection Agency’s Guidance for Determining Best Available Control Technology for Reducing Carbon
Dioxide Emissions from Bioen ergy Production (March 2011)

To the extent that biogenic CO 2 emissions have unique lifecycle characteristics that
warrant different treatment unde r the Clean Air Act (“CAA”) fr om other pollutants, these characteristics cannot form the basis of a broad exemption from PSD and Title V permitting. Rather, biomass feedstocks and the resulting CO 2 emissions must be analyzed in the context of facility-specific, case-by-case best available control technology (“BACT”) determinations. These comments address the appropria te treatment of CO 2 emissions from the combustion of biomass in BACT determinations. Appropriate treatment of biomass in the BACT process is critical to achieving the real greenhouse gas (“GHG”) emissions reductions necessary to combating climate change.

EPA released BACT guidance for bioe nergy emissions (“Bioenergy BACT Guidance”) concurrently with its propos al to defer regulation of biogenic CO 2 emissions under the Clean Air Act’s prevention of signi ficant deterioration (“PSD”) and Title V permitting programs. 1 As explained below, the Bioenergy BACT Guidance fails to provide necessary technical s upport for case-by-case BACT dete rminations. Instead, in a dramatic departure from past EPA practice, the Bioenergy BACT Guidance explicitly encourages permitting authorities to substitu te broad policy judgments for the case-bycase analysis required by statute and regula tions. Indeed, the real purpose of the Bioenergy BACT Guidance appears to be to provide an effective exemption from BACT analysis for all bioenergy facilities that mi ght not be covered by the deferral rule’s absolute exemption from PSD permitting. EPA’s approach in the Bioenergy BACT

1 Deferral for CO2 Emissions From Bioener gy and Other Biogenic Sources Under the Prevention of Significant Deterioration (PSD ) and Title V Programs: Proposed Rule, 76 Fed. Reg. 15,249 (March 21, 2011); U.S. EPA, Guidance for Determining Best Available Control Technology for Reducing Carbon Diox ide Emissions from Bioenergy Production (Mar. 2011) (hereafter “Bioenergy BACT Guidance”). We reemphasize EPA’s Disclaimer in the Bioenergy BACT Guidance that “[t]his document is not a rule or regulation” and “does not change or substi tute for any law, regulation, or any other legally binding requirement and is not legally enforceable .” Bioenergy BACT Guidance (“Disclaimer”). Therefore, despite the comments below demonstrating the patent unlawfulness of much of this guidance, we do not concede, and EPA correctly recognizes, that this guidance has no binding effect on permitting authorities and cannot override the express requirements of the Clean Air Act and validly promulgated and lawful EPA regulations.Comments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 2 Guidance—like the deferral rule overall—is arbitrary, unsupportable, and all but certain to encourage legally and factually de ficient BACT determinations.

1. EPA Has Not Demonstrated that Biomass Combustion Per se Constitutes BACT

Once EPA has determined that a facility is a “major emitting facility,” the next relevant inquiry is whether the source has complied with mandatory PSD requirements, including the BACT requirement. While the applicability determination is straightforward, the question of when biomass may – if ever – qualify as BACT is less so.

a. EPA Has Not Shown that Biomass Is a “Clean Fuel”

EPA has not directly proposed that biomass be considered a “clean fuel” based on an accounting of the CO 2 emissions associated with the full lifecycle, production and use of the feedstock. We have previously noted that the legal basis for incorporating this type of lifecycle analysis into the BA CT determination is unclear. 2 However, should EPA determine that it has such authority, any de termination that biomass constitutes a “clean
fuel” must be made in accordance with the Cl ean Air Act and EPA regulatory precedent. That is, it must be made in accordance with the top-down, five step process in the 1990 New Source Review Workshop Manual 3 and must be made on a case-by-case basis.

The statute defines BACT as “an em ission limitation based on the maximum degree of reduction of each pollutant subject to regulation under this chapter emitted from or which from any major emitting facili ty, which the permitting authority on a caseby-case basis, . . . determines is achievable for such facility though the application of production processes and available methods, sy stems, and techniques, including fuel cleaning, [and] clean fuels.” 4 Although there has been little guidance as to what constitutes a clean fuel, histor ically the focus on whether a given fuel type constitutes a “clean fuel” has focused on a facility’s at the st ack emissions – that is, whether the fuel is

2 See Comments of Clean Air Task Force, et al ., and Comments of Center for Biological Diversity, in response to EPA’s Call for In formation (EPA Docket ID Nos. EPA-HQOAR-2010-0560-0432 and EPA-HQ-OAR-2010- 0560-0157); see also Center for Biological Diversity, Re: PSD and Title V Permitting Guidance For Greenhouse Gases, 75 Fed. Reg. 70,254 (Nov. 17, 2010) (EPA Docket ID No. EPA-HQ-OAR-2010-0841- 0058).

3 New Source Review Workshop Manual; Prev ention of Significant Deterioration and Nonattainment Area Permitting (Oct. 1990) (“1990 NSR Manual”).

4 42 U.S.C. § 7545(3).Comments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 3 “inherently cleaner” in terms of at th e stack emission than an alternative. 5 If a fuel could only be considered “clean” in these terms, however, biomass could never qualify as BACT because, per unit of energy, biomass combustion emits more CO 2 than coal and significantly more than natural gas. Ther efore, any determination that biomass is
“cleaner” than fossil fuels must necessari ly be based on an accounting of the CO 2 emissions associated with the fu ll lifecycle of the feedstock.

As EPA recognizes, with fossil fuel com bustion, there is effectively no way to restore the carbon stocks lost by combusting those fuels in any near term timeframe. 6

EPA claims that biomass is different because the potential growth of additional biomass arguably results in resequestration of carbon dioxide; however, biomass combustion also
incurs a “carbon debt” that can persist for decades or even centuries depending on the time needed for resequestration. EPA itsel f has properly acknowle dged that different types of biomass have different types of lifecycle emissions. For example, current
studies have shown that burni ng whole green trees causes more near term climate change damage than burning coal or natural gas. 7 For these reasons, if EPA were to propose that any particular biomass feedstock be treated as a clean fuel, it woul d have to do so based on appropriate lifecycle analyses. 8

Any such determination, however, must be made in accordance with the CAA. Namely, the analysis must be made on a case-by-case basis and in accordance with the top-down, five-step BACT analysis, which is consistent with the Clean Air Act’s requirements for BACT.

5 Comments of Clean Air Task Force on PSD and Title V Greenhouse Gas Tailoring Rule at 17-18 (EPA Docket ID N o. EPA-HQ-OAR-2009-0517-6200.1).

6 76 Fed. Reg. at 15,254.

7 See Manomet Study at 7.

8 We do not concede that, in general, a lifecy cle analysis is appropriate for determining that combustion of a particular fuel by itsel f constitutes BACT. For instance, we do not concede, as was suggested in EPA’s BACT GHG guidance white paper, that methane emissions from coal or natural gas extraction sh ould be considered in the BACT process. U.S. EPA, Available and Emerging Technologi es for Reducing Greenhouse Gas Emissions from Coal-fired Electric Generating Units , 20 (Oct. 2010). Moreover, BACT has generally been read as requiring that th e “emission limitation” established through the analysis be immediately applicable upon r eceipt of the permit and commencement of operation. Any consideration of potential futu re resequestration in determining a BACT emissions limitation therefore contradi cts long-term EPA precedent.Comments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 4 First and foremost, the CAA requires that each BACT determination must be made “on a case-by-case basis” wherein the permitting authority may take into account “energy, environmental, and economic impacts and other costs[.]” 9 We are aware of no authority that allows a permitting authority to deviate from this requirement. While EPA objects that such a case-by-case analysis would be “complex” and “time consuming” with respect to biomass, EPA has not offered any f acts or evidence demonstrating that this will be the case in every instance. Nor has the agency adequately explained why this “complexity” justifies a de facto exemption from the case-by-case BACT analysis requirement. 10 This contravenes the plain language of the statute. There are more legally defensible ways for EPA to assist permitting authorities in this process, such as by identifying carbon lifecycle acc ounting methods from the scien tific literature that may be appropriate for assessing the impacts of using a particular feedstock. In any event, the permitting authority must still engage in a cas e-by-case accounting at the facility level of emissions associated with the full chain of fuel production and use. 11

Second, as EPA recognizes, permitting author ities should continue to apply the five-step, top down analysis when permitting new or modified sources of GHGs. 12 Even though EPA’s assertion is corre ct on its face, its applica tion of the top-down BACT analysis in the Bioenergy BACT Guidance is misguided. EPA there asserts that “[s]tep 4 of the BACT analysis seems well-suited to en able permitting authorities to consider the potential sequestration of carbon in biogeni c resources outside the boundaries of the facility when evaluating BACT for greenhouse gases.” 13 However, as is explained here and in comments by Clean Air Task Force on the November 2010 BACT GHG Guidance, 14 this presupposes without explanation that biomass should be listed as a control technology at Step 1 in the first instance.

9 42 U.S.C. § 7479(3).

10 See Bioenergy BACT Guidance at 23.

11 76 Fed. Reg. at 15,529. For instance, as noted above, a permitting authority would
have to take into account whether use of these feedstocks would result in increased, indirect emissions. This could occur, for in stance, if feedstocks that were originally being used for consumer goods, such as furniture, are proposed to be diverted for bioenergy purposes.

12 Bioenergy BACT Guidance at 11.

13 Id. at 21.

14 Comments of Clean Air Task Force et al. on PSD and Title V Permitting Guidance for Greenhouse Gases at 3 (EPA Docket ID No. EPA-HQ-OAR-2010-0841-0085). ThisComments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 5 EPA’s own guidance, which has been in effect and applied by permitting authorities for decades, demonstrates that the available BACT options, including clean fuels, must be determined at step 1 to even proceed to the subsequent steps of the BACT analysis: “The first step in a ‘top-down’ anal ysis is to indentify, for the emission unit in question . . ., all ‘available’ control options.” 15 Only once something has been identified as a valid “control technology” may it be di scounted at further st eps in the analysis (including based on environmental considera tions at step 4). Therefore, EPA’s
November 2011 BACT GHG Guidance and the Bi oenergy BACT Guidance simply put
the cart before the horse by presupposing, without any expl anation, that biomass should
be listed as even a threshold matter. This is particularly true with respect to biomass
combustions because it will in evitably result in more CO 2 emissions per unit of energy than other types of fuel. Therefore, if permitting authorities are to conclude that biomass constitutes an available control technology ba sed on a lifecycle analysis, this must occur at step 1 and not at step 4. 16

guidance was updated in March 2011 by EPA. Th is guidance was originally issued in November 2010 and was updated by EPA in March 2011, see U.S. EPA, PSD and Title V Permitting Guidance for Greenhouse Gases (Mar. 2011). References to the original guidance issued in November are refe rred to as the “November 2010 BACT GHG Guidance.” References to the updated BACT GHG Guidance are “BACT GHG Guidance (updated March 2011).”

15 1990 NSR Manual at B.5.

16 Clean Air Task Force and other enviro nmental organizations commented on the relationship between Step 3 and Step 4 of the BACT analysis as discussed in the November 2010 BACT GHG Guidance. In that guidance, EPA suggested that a less effective control technol ogy could be chosen on the basis of environmental considerations despite the availability of more stringent control technologies. (EPA has since updated this guidance in March of this year). Clean Air Task Force and others noted that historically, as EPA continues to recognize, “[t]he top-ranked options should be established as BACT unless the permit applicant demonstrates to the satisfaction of the permitting authority that technical considerations, or energy, environmental, or economic impacts justify a conclusion that th e top-ranked technology is not ‘achievable’ in that case. If the most effective control st rategy is eliminated in this fashion, then the next most effective alternativ e should be evaluated, and so o n, until an option is selected as BACT.” BACT GHG Guidan ce (updated March 2011) at 19; see also 1990 NSR Manual at B.26-29. Despite this well establis hed precedent, EPA seems to suggest that a permitting authority may choose a lesser effective control technology based solely on step 4 environmental, energy, or economi c considerations even though other more stringent technologies have not been eliminated. BACT GHG Guidance (updated March 2011) at 41. These two approaches cannot be reconciled and as was stated in comments on the November 2010 BACT GHG Guidance, EPA has not provided any authority toComments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 6 In sum, if EPA determines that it has authority to determine that biomass constitutes a clean fuel based on a full lifecycle emissions analysis, then such an analysis must be conducted in accordance with the requirement s of the CAA. First and foremost, the analysis must be done on a case-by-case basis. While EPA may prefer to determine that certain types of biomass probably constitu te BACT, it must nonetheless conduct an analysis at the facility level to demons trate that this is indeed the case.

Finally, we continue to object to EPA’s conclusion that a lifecycle analysis may be conducted at step 4 of the top-down analysis . This is contrary to decades-long EPA precedent, which requires that a fuel must be listed as a control technology – because of its effectiveness in reducing emissions – at step 1 of the analysis

2. EPA’s Proposed Expansion of the Step 4 Analysis Is Unprecedented and
Unlawful

The BACT Bioenergy Guidance does not actu ally propose that ca reful, case-by-case lifecycle analysis be conducted at step 4 of the BACT process. Rather, EPA proposes that the step 4 inquiry be used to avoid the necessity for analysis in the first place. In essence, EPA counsels permitting authorities to conduct a rigged analysis that substitutes preconceived policy judgments for polluti on control technologies and ignores the environmental, economic, and energy dr awbacks of widespread biomass energy generation. The real purpose of EPA’s proposal—to create a de facto exemption from real BACT analysis for bioenergy facilities that cannot avail themse lves of the broader exemption in the proposed deferral rule —is as unlawful as it is obvious.

The flaws in EPA’s approach pervade each area of Step 4 analysis: environmental, economic, and energy impacts.

a. Environmental Impacts

EPA’s guidance for assessment of environm ental impacts is deeply problematic. First, EPA deviates from past practice by pr oposing that the analysis consider the effects
of CO 2 emissions, namely the fact that “t he production of biomass entails carbon

demonstrate that step 4 considerations may be the sole basis for determining the BACT emissions limitation. Comments of Clean Ai r Task Force et al. on “PSD and Title V Permitting Guidance for Greenhouse Gases” at 6 (EPA Docket ID No. EPA-HQ-OAR2010-0841-0085). The Bioenergy BACT Guidance would appear to apply this faulty reasoning, and to the extent it does, the gui dance continues to be without legal support and contrary to the statutory and regulato ry requirements of the BACT analysis. See Bioenergy BACT Guidance at 16-18. In ot her words, if there is a control technology with demonstrably lower emissions than biom ass that has not been eliminated due to a step 4 consideration, it is that techno logy that must be chosen as BACT.Comments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 7 sequestration.” 17 This is true as far as it goes, bu t it proves only that biomass contains carbon. EPA, however, apparently takes this statement to mean that the combustion of biomass entails carbon sequestration, which is an entirely different proposition, and not necessarily a true one. Burning biomass doe s not by itself guarantee future land-based sequestration.

EPA also proposes that permitting authoritie s measure bioenergy emissions against a land-based “business as usual” sequestration baseline. EPA’s baseli ne concept, however, is underdeveloped. 18 Even if a future land-based “bas eline” were developed for use in case-by-case BACT determinations, it would need to be far more robust and inclusive than the approach contemplated in either th e proposal or the Bioe nergy BACT Guidance. Such an approach must consider the effect s of policy actions and incentives (including deregulatory actions like the proposal) on fore st and land management. It also must accurately account for the s hort-term climate impacts as sociated with immediate
combustion of materials that would othe rwise decompose over time; even “waste”
biomass materials like forest residues can ta ke decades to decompose, and combustion of
these materials will transform st ored carbon into climate-forcing CO 2 far more rapidly and efficiently. 19 Such an approach also must account for the lost capacity for additional sequestration associated with biomass rem oval and combustion. Over time, a growing forest may sequester far more carbon if left alone than if harvested and burned for energy,
even if the carbon lost to combustion is eventually replaced with new growth. 20 EPA’s skeletal “baseline” proposal doe s not seem to consider lost sequestration capacity at all.

EPA further repeats the proposal’s uns upported conclusions that certain biomass feedstocks (such as mill waste and dead trees) have “negligible” climate impacts. As previously discussed, these assertions lack ad equate explanation or scientific support and, as such, cannot be used to justify a dete rmination that burning these feedstocks
constitutes BACT.

17 Bioenergy BACT Guidance at 20.

18 See Bioenergy BACT Guidance at 22.

19 See Anna Repo, Indirect Carbon Dioxide Em issions from Producing Bioenergy from Forest Residues, G LOBAL C HANGE B IOLOGY B IOENERGY (2010) (doi: 10.1111/j.1757- 1707.2010.01065.x ).

20 See Eric Johnson, Goodbye to Carbon Neutral: Getting Biomass Footprints Right , 29
E NVTL

. I MPACT A SSESSMENT R. 165 (2008).Comments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 8 Finally, EPA’s guidance completely ignor es the wider environmental impacts of widespread bioenergy generati on. As discussed elsewhere in this letter, implementation of policies favoring bioenergy—including fa vorable regulatory policies such as contemplated in the proposal and the Bioenergy BACT Guidance—will result in increased demand for woody biomass fuel. EPA even admits as much in extolling the economic benefits of bioenergy generation. But this increased demand will necessarily affect forest and land management, degrade fo rest habitat, result in more aggressive logging operations that degrad e water quality, and cause impacts to human health resulting from conventional pollutant emissions from a new fleet of biomass facilities. In effect, EPA advises permitting authorities to consider only the purported benefits of biomass energy generation—benefits that EPA has not shown to exist—and none of the drawbacks. A BACT analysis should include an honest asse ssment of the environmental consequences of any particular control tec hnology. The Bioener gy BACT Guidance, in contrast, rigs the game, sending permitting authorities on an outcome-oriented path toward a preordained conclusion.

b. Economic Impacts

Once again, EPA deviates from past pr actice in recommendi ng that permitting
authorities consider the “indi rect” economic impacts—or, mo re accurately, the “potential economic benefits”—of bioenergy generation. 21 EPA does not even attempt to explain why such analysis is appropriate in the cont ext of bioenergy facili ties, when it has not been appropriate for any other type of facility.

Going one step further, EPA openly recomme nds that permitting authorities substitute policy preferences for actual analysis of economic impacts. EPA asserts that the “underlying objectives” of policies promoti ng bioenergy “may be considered as a relevant indirect economic imp act or benefit” under step 4—regardless of whether such an impact or benefit actually occurs. EPA likewise states that where selection of a “particular option” (i.e., bioma ss combustion) as BACT would “further the goals” of such a policy, this may form “part of the basis” of selecting that option as BACT. These objectives, goals, and policy judgments, howev er, have nothing to do with whether the choice of any particular facility to burn biomass will have any particular economic impact. This aspect of step 4 analysis s hould be concerned with establishing the costeffectiveness of pollution cont rol measures, not with adva ncing unrelated “goals” and “objectives.” These policy judgments have no place in BACT analysis.

21 Bioenergy BACT Guidance at 25.Comments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 9 c. Energy Impacts

EPA again advises permitting authorities to “broaden the scope” of energy impacts analysis beyond what has traditionally occurr ed at step 4. Once again, the rationale for this broadening is that “a variety of st ate and federal policie s” favor bioenergy. 22 EPA thus again recommends that permitting agencies substitute policy judgments for analysis under step 4.

Even if such an expansion of scope were permissible, EPA’s policy-driven guidance would skew the resulting analysis. For ex ample, EPA recommends consideration of policies that require replacement of fossil fuel s with “renewable” fuels. Yet EPA fails to acknowledge that many of these policies estab lish a renewable “portfolio” target that could be satisfied by any number of renewa ble generation technologi es, including far less carbon-intensive technologies like solar a nd wind. Under thes e policies, biomass generation does not necessarily replace fossil fuel generation, but ra ther competes with other forms of renewable generation. In e ffect, making a policy judgment in favor of a carbon-intensive, low-efficiency, and highly polluting biomass facility could have the effect of foreclosing a far cleaner and less carbon-intensive altern ative. By focusing solely on the purported benefits of biomass en ergy generation, and by resolutely ingoring any possible drawbacks, EPA precludes any real analysis of indirect energy impacts.

3. The “Bioenergy BACT Guidance” Effec tively Constitutes Presumptive BACT

The Bioenergy BACT Guidance, in effect, advises permitting authorities to presume that biomass combustion is BACT for itself. EPA accomplishes this by stating that where a bioenergy facility is projected to provide energy and economic benefits in accordance with state and federal policies promoting bioenergy generation, these considerations may justify sel ecting a biomass fuel as BACT for CO2 emissions from the facility. 23 Put more succinctly, if a bioenergy facility advances policies promoting bioenergy, the BACT analysis for CO 2 is presumed to be satisfied.

Of course, what EPA proposes is nothing mo re than a tautology. Bioenergy facilities will almost always advance policies favoring bioenergy facilities. Yet this conclusion tells permitting authorities absolutely nothi ng about the environmental, economic, or energy impacts of a particular biomass fuel or facility. This conclusion, in other words, is a mere presumptive judgment that cannot s ubstitute for BACT analysis. Any such presumption, moreover, is patently unlawful . First, the requirement that BACT be

22 Bioenergy BACT Guidance at 27.

23 Bioenergy BACT Guidance at 29.Comments Re: U.S. EPA Biogenic CO 2 BACT Guidance Page 10 conducted on a “case-by-case” basis is a statutory requirement. 24 EPA has not met the especially high burden associated with justifyi ng a deviation from this requirement. It states merely that “such a case-by-case analys is of the net atmospheric impact of biomass fuels would likely be prohibitively time-c onsuming and expensive” and “would require extensive analysis” and “extensive workload requirements.” 25 EPA, however, provides no support for this conclusion. 26 Therefore, EPA has failed to meet the “especially high burden” of deviating from th e plain language of the Clean Air Act by justifying its action unsubstantiated future predictions of regulatory difficulty. 27

24 42 U.S.C. § 7479(3); see also 1990 NSR Workshop Manual at B.1 & B.5.

25 Bioenergy BACT Guidance at 23.

26 Compare 75 Fed. Reg. at 31,556-57 (noting that fa ilure to tailor the PSD thresholds
would “increase the size of th e PSD program at least an or der of magnitude beyond what Congress seems to have expected” and noting the total additional wo rkload and cost to permitting authorities absent tailoring).

27 Alabama Power Co. v. Costle , 636 F.2d 323, 359-60 (D.C. Cir. 1980).