• Miyares and Harrington, LLP

DEP Must Perform an Independent Analysis of BACT, Says the First Circuit

Earlier this month, the Town of Weymouth, represented by our own Ray Miyares, Bryan Bertram, and Katherine Stock, won its challenge in the First Circuit Court of Appeals to Algonquin Gas Transmission’s Air Plan Approval for a gas compressor station. The First Circuit held that the Department of Environmental Protection did not follow its own guidance for determining the Best Available Control Technology (BACT), vacated the permit, and remanded the matter to DEP for further proceedings.

BACT is the standard for selecting the technology that is to be used to reduce air pollution emissions—in this case, nitrogen oxide (NOx). Generally, DEP employs a 5 step BACT analysis. In the first step, all control technologies are identified. Next, technically infeasible options are eliminated. The next step ranks all remaining control technologies by control effectiveness. Then, the most effective controls are evaluated and results documented. Finally, the BACT is selected.

Algonquin applied this five-step analysis and concluded that a gas-fired SoLoNox turbine was sufficient to control NOx for the facility. Without further independent analysis, DEP agreed. Weymouth argued to DEP that Algonquin should have considered an electric motor to power the compressor station. In a revised application, Algonquin took the position that this option was excluded for several reasons, including the high cost of upgrading the existing power infrastructure.

During proceedings before the administrative hearing officer, both Algonquin and DEP argued that the electric motor option was properly excluded from Step 1 of the BACT analysis as an impermissible project redesign. The Presiding Officer was not persuaded by this argument, but instead found the electric motor would properly be excluded at Step 4 of the BACT analysis as not cost feasible, based on the testimony of a sole Algonquin witness, who estimated that the necessary infrastructure upgrades would cost between $9 million and $12 million. Town of Weymouth v. Mass. Dept. of Environmental Protection, No. 19-1794 (1st Cir. June 3, 2020.

Neither the Presiding Officer nor anyone on behalf of DEP provided a full analysis of cost effectiveness, as required by agency guidance. Instead, DEP argued that the $9-12 million infrastructure cost is so high that the cost effectiveness, if calculated, would necessarily exceed the cutoff for financial feasibility. In its own detailed analysis, the First Circuit found that, without a more detailed explanation from MassDEP, it could not agree. After attempting to run the mathematical calculations necessary to make any cost-effectiveness determination based on the evidentiary record, the First Circuit concluded that “DEP’s established BACT protocol requires a cost-effectiveness analysis before eliminating a technology at Step 4, and the results of such an analysis do not strike us as so obvious as to overlook as harmless DEP’s failure to either follow that protocol or at least do enough to make it appear that the following protocol would eliminate the electric motor as a cost-effective option.” The Court held that DEP’s decision to exclude the electric motor was arbitrary and capricious before vacating the permit and remanding the matter to the agency to conduct further proceedings.

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