In West Virginia, Odebrecht has not yet provided any estimates of the size of its proposed cracker or the potential pollution it might create. But state officials are fairly confident it will meet the 100,000-tons-per-year emissions threshold to quality as a "major source" of greenhouse emissions.
For years, West Virginia law has generally prohibited state regulators from issuing any new rules or permits that would limit greenhouse gas emissions, absent a federal mandate to do so and separate legislative approval.
Then, in May 2010, the Obama administration issued what the U.S. Environmental Protection Agency called its greenhouse gas "tailoring rule." It set up the guidelines for what size industrial facilities need to consider greenhouse gas emissions when they obtain construction permits.
Once the EPA issued its rule, West Virginia had two choices: The state could go along, and add similar language to the its air pollution rules, or it could refuse -- setting up a legal fight and likely leading the EPA to take over review of those sorts of permits.
In Texas, officials decided to fight the EPA. Federal officials did take over some of that state's permitting functions, and Texas officials have continued a court fight to block the EPA's greenhouse emissions rules.
West Virginia DEP officials decided not to take that route. In January 2011, they added greenhouse gas language to an air pollution rule rewrite that was already being considered by the Legislature. Lawmakers approve the language, and it took effect in June 2011.
So, when Odebrecht submits an air pollution permit, the company will have to prove that it's proposing to use the "best available control technology," or BACT, for its greenhouse emissions. DEP officials will have to verify the company's claims.
DEP air quality engineer Joe Kessler said that in Texas, the EPA has issued several BACT determinations for cracker facilities like the one being considered for Wood County. The EPA has not required those facilities to capture and store their carbon dioxide emissions, he said. Instead, federal officials have focused on requiring companies to use efficiency, combustion controls, and leak detection and repair efforts to limit their greenhouse emissions. Without an actual permit application in hand, though, it's hard for DEP officials to say what they might require of a cracker plant in West Virginia.
"We want to know a little bit about what we're really looking at," Kessler said.
Meanwhile, though, Tomblin and state Attorney General Patrick Morrisey have filed a "friend of the court" brief to support the effort by Texas to have the EPA's "tailoring rule" on greenhouse emissions thrown out.
In their legal brief, Tomblin and Morrisey argue that processing the greenhouse gas portion of air pollution permits is overly costly and too much of a burden for the DEP.
The Texas case is one of several the U.S. Supreme Court has agreed to hear from industry groups and states that are trying to derail the EPA's initiatives aimed at curbing climate change.
"They are arguing that the federal Clean Air Act was not intended to address greenhouse gases," said John Walke, clean air director and senior attorney for the Natural Resources Defense Council, "and the state of West Virginia is making clear that, absent any federal mandate, they would not do so."
Reach Ken Ward Jr. at kw...@wvgazette.com or 304-348-1702.