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Virginia's best available control technology (BACT) relies on emission reduction per emissions unit via production processes, methods, or techniques. 9 Va. Admin. Code § 5-50-260(C). Specifically, Virginia's BACT analysis requires the development of an emissions limitation based on the maximum degree of emission reduction which the Air Pollution Control Board, on a case-by-case basis, determines is achievable for the new stationary source through the application of production processes or available methods, systems and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques. § 5-50-250(C). There is no reference to the redefining the source doctrine in Virginia law or regulations.
Friends of Buckingham and the Chesapeake Bay Foundation, Inc. (collectively, "Petitioners") challenge the Virginia Air Pollution Control Board's ("Board") award of a permit for construction of a compressor station on behalf of Intervenor Atlantic Coast Pipeline, LLC ("ACP") in the historic community of Union Hill in Buckingham County, Virginia (the "Compressor Station"). The Compressor Station is one of three such stations planned to support the transmission of natural gas through the ACP's 600-mile pipeline (the "Pipeline"), which is projected to stretch from West Virginia to North Carolina. Petitioners filed this petition for review against the Board and its chairman, and the Virginia Department of Environmental Quality ("DEQ") and its director (collectively, "Respondents"), raising two assignments of error. First, Petitioners contend the Board erred in failing to consider electric turbines as zero-emission alternatives to gas-fired turbines in the Compressor Station. Second, they contend the Board erred in failing to assess the Compressor Station's potential for disproportionate health impacts on the predominantly African-American community of Union Hill, and in failing to independently evaluate the suitability of that site.
Did the Board err in failing to consider electric turbines as zero-emission alternatives to gas-fired turbines in the Compressor Station?
The court vacated and remanded the decision of the Virginia Air Pollution Control Board, which awarded a permit for construction of a compressor station to support the transmission of natural gas through a 600-mile pipeline because the Board failed to provide a sufficient and rational explanation of its failure to consider electric turbines in place of gas-fired turbines in its best available control technology (BACT) analysis; any decision to exclude an option on redefining the source grounds had to be explained and documented in the permit record. The court also held that the Board failed to perform its statutory duty under Va. Code Ann. § 10.1-1307(E) because it did not make findings on community demographics required for assessment of the likelihood of disproportionate harm, and improperly rejected the idea of disproportionate impact on the basis that air quality standards were met.