After unsuccessfully opposing an air permit before the Texas Commission on Environmental Quality (TCEQ) issued to a liquefied natural gas (LNG) facility, a local community organization filed a Petition for Review to the 5th Circuit.

Failure to Explain More Lenient Emission Limits
The Petition asserted that the permit’s emission limits for the LNG facility’s refrigeration compression turbines were too high because TCEQ had issued another permit with lower limits to a different LNG facility, which proposed using the same turbines. The 5th Circuit held that TCEQ had not adequately explained why this LNG facility could not meet the same limits as the other facility and remanded the permit to TCEQ.

Determination of BACT
By law, TCEQ must set emission limits consistent with a facility’s use of best available control technology (BACT). TCEQ argued that the other facility, which was permitted but not yet built, could not be considered as establishing BACT until it became operational and could demonstrate the ability to meet the lower limits.

Actual Demonstration Not Required for BACT
An EPA interpretation submitted into the record stated that the basis “is not always required to be operational or actually demonstrated in practice to be considered technically feasible and BACT.” EPA further stated, “While it is not mandatory to select a specific limit as BACT solely because another similar source has done so, the basis for selecting a less stringent limit should be documented in the permit record for evaluation.”

The 5th Circuit determined TCEQ was wrong in rejecting the other permit as establishing BACT solely because the facility was not yet operational. The Court remanded the permit, instructing TCEQ that it “must demonstrate that it is treating permit applications consistently.” To issue a more lenient permit, TCEQ must “adequately explain” why the permit for the other facility, which proposes to use the same equipment, does not establish BACT.

To see the opinion https://www.ca5.uscourts.gov/opinions/pub/22/22-60556-CV0.pdf

Wishing Everyone a Happy Thanksgiving!