Article published Dec 20, 2007

Board to hear air-permit appeal

By KARL PUCKETT

Tribune Staff Writer

Whether the state should treat the greenhouse gas carbon dioxide as pollution and require emissions limits will be argued when the Montana Board of Environmental Review on Friday considers an appeal of the proposed Highwood Generating Station east of Great Falls.

The state Department of Environmental Quality says it can't regulate carbon because there are no state or federal laws calling for its regulation.

Those appealing the air-quality permit for Highwood Generating Station argue that a recent U.S. Supreme Court decision involving greenhouse gases should apply to the coal-fired power plant's permit.

"This is a critical case of nationwide importance," said Ann Hedges of the Montana Environmental Information Center.

In May, the DEQ issued an air-quality permit to developer Southern Montana Electric Generation & Transmission Cooperative to operate the 250-megawatt plant.

MEIC and Great Falls-based Citizens for Clean Energy are appealing the permit and the Board of Environmental Review will hear arguments Friday beginning at 9 a.m. in the Metcalf Building in Helena.

The groups argue in the appeal that the state didn't require the power plant to have the "best available control technology" to limit emissions of carbon dioxide as well as tiny particulates, which are less than 2.5 microns in diameter.

In arguing the state should regulate carbon, opponents point to an April decision by the U.S. Supreme Court in Massachusetts vs. the Environmental Protection Agency, which said greenhouse gases "fit well within the Clean Air Act's capacious definition of air pollutant."

Hedges said the appeal is the first in Montana to challenge an air-quality permit based on the argument that the state failed to regulate carbon dioxide under the federal Clean Air Act.

DEQ attorney David Rusoff said the state's position is that both the carbon dioxide and particulate matter arguments are legally flawed.

Carbon dioxide is not regulated at either the federal or state level, he said. As for the particulate matter, he said the DEQ did comply with the legal requirements for setting emission limits.

The groups opposed to the plant, he said, are asking the DEQ to apply a standard to Highwood Generating Station that no other permitting agency in the nation has applied as far as he is aware.

"It's a significant case," he said.

Jeff Chaffee, an SME consultant, said the crux of the issue is whether the state only can apply existing regulations or is "reaching beyond."

It will be up to the board to decide, he added.

"We believe the state appropriately followed their law and regulations in issuing the permit," he said.