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Appalachian Voices v. State Air Pollution Control Bd.

ELR Citation: 40 ELR 20150
Nos. No. 2199-09-2, (Va. Ct. App., 05/25/2010)

The Virginia Court of Appeals upholds a lower court decision affirming a decision of the State Air Pollution Control Board to issue a PSD permit allowing an electric company to build and operate a coal-fired electric generating plant. The lower court did not err in concluding that carbon dioxide (CO2) is not a pollutant "subject to regulation" by the Board and under the federal CAA. Because no provision of the CAA or Virginia law controls or limits CO2 emissions, CO2 is not a pollutant "subject to regulation." Therefore, CO2 is not a regulated new source review pollutant under the PSD permitting program, and the Board was not required to complete a "best available control technology" analysis to establish permit limits for CO2 emissions at the time it issued the PSD permit. Nor did the court err in approving the Board's use of the more coarse particulate matter pollutant, PM10, as a surrogate for the regulation and control of the more fine particulate matter pollutant, PM2.5. Substantial evidence supported the Board’s approach.