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March 31, 2017
9th Circuit affirms EPA’s flexibility with BART alternative

A panel of judges with the U.S. Court of Appeals for the 9th Circuit found that EPA’s regional haze plan for the Navajo Generating Station complied with the Clean Air Act (CAA) as well as the Agency’s own regional haze regulations and Tribal Authority Rule.

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Environmental and conservation groups and tribal organizations contended in their petition to the court that EPA’s federal implementation plan (FIP) for the Station did not meet the required deadline to implement the best available retrofit technology (BART) required by the CAA to achieve reasonable progress at bringing visibility impaired by emissions from stationary sources back to natural conditions.

But the panel ruled that the Agency’s FIP relied on a better-than-BART alternative, which provides the Agency with more flexibility when setting a deadline and complying with other requirements under the regional haze program.

West’s largest coal plan

Located on the Navajo Reservation in Arizona, the Station is the largest coal-fired plant in the western United States. The plant’s nitrogen oxides (NOx) emissions affect visibility at Class I national parks and wilderness areas, including the Grand Canyon. The Station’s critical role includes powering a water distribution system that meets over 20 percent of Arizona’s water demands.

SIPs, TIPs, & FIPs

Under the regional haze program, states and certain tribes develop state implementation plans (SIPs) or tribal implementation plans (TIPs) showing how they will meet the visibility requirements through the application of BART. Should states/tribes choose not to submit a SIP/TIP or should the EPA disapprove all or part of the submitted SIP/TIP, the Agency must then develop and implement a FIP to fill in the gaps.

Any source of emissions subject to BART must operate the appropriate technology as expeditiously as practicable but in no event later than 5 years after approval of a SIP or TIP or issuance of a FIP. However, and critical to this case, a state or tribe can bypass BART with a better-than-BART alternative provided certain conditions are met. Also, in 1998, the EPA issued its Tribal Authority Rule (TAR), which provides the EPA with more time to issue and implement a FIP when a tribe chooses not to develop a TIP.

In August 2014, the EPA issued its final FIP for the Navajo Station, which comprised a better-than-BART alternative that extended the deadline for achieving NOx emissions reductions to 2023. It also gave an emissions “credit” for the Station’s early and voluntary 2009–11 installation of the low-NOx burners.

Deadlines are not ‘procedural’

Petitioners argued that EPA’s extended deadline is contrary to the plain language and purpose of the CAA and its implementing regulations. Specifically, they asserted that any flexibility under the TAR applies only to “procedural,” not “substantive,” requirements of the CAA or that it only applies to submission deadlines, not compliance deadlines. Accordingly, petitioners contended that the TAR does not exempt tribal sources from meeting the substantive pollution reduction requirements for a BART alternative under the CAA, which purportedly includes a 5-year compliance deadline.

The EPA responded that the TAR entitled it to establish different “necessary or appropriate” deadlines for the FIP.

In ruling for the Agency on the deadline issue, the panel referenced the 10th Circuit’s opinion in Ariz. Pub. Serv. Co. v. EPA (APS):

“The panel notes that in APS, the court rejected arguments by environmentalists that a FIP promulgated in place of a TIP for the Four Corners Power Plant on the Navajo Nation reservation in New Mexico was arbitrary and capricious because the FIP did not satisfy the SIP completeness criteria. The court reasoned that the TAR ‘provides the EPA discretion to determine what rulemaking is necessary or appropriate to protect air quality and requires the EPA to promulgate such rulemaking. Nothing in the [governing CAA section] requires the EPA—as opposed to a tribe—to submit a plan meeting the completeness criteria.’”

“The court thus deferred to the EPA’s interpretation of the TAR because it was not ‘plainly erroneous or inconsistent with the regulation,’ and denied the environmentalists’ petition,” continues the 9th Circuit panel. “Importantly, APS did not hold that the TAR only excused tribes from meeting procedural requirements. Rather, the court also rejected the environmentalists’ more substantive argument that ‘the TAR requires the EPA to implement a more stringent federal plan[.]’ As recognized by APS, the TAR grants the EPA wide discretion to determine what rulemaking is required to protect air quality on tribal lands. Nothing in the TAR requires the FIP to comply with the regional haze deadline applicable to a SIP.”

Greater reasonable progress and credits

The panel also ruled against several other challenges:

  • Petitioners asserted that EPA’s contention that the BART alternative is better than BART because it achieves greater reasonable progress than would be achieved under BART was not supported, as required, by “clear weight of evidence,” one of three methods available to demonstrate that greater reasonable progress (than BART) will result.

The panel dismissed this argument because the EPA relied on another method—distribution of emissions is not substantially different under BART and the alternative—and not on the weight-of-evidence method.

  • The BART alternative incorporated an emissions credit for the Station’s voluntary 2009–11 installation of the low-NOx burners. The EPA conceded that absent this credit, the BART alternative would not achieve greater NOx reductions than BART. The key issue is whether it was reasonable for the EPA to give the Station an emissions credit when evaluating if the BART alternative results in greater emissions reductions than BART. Petitioners said use of the emissions credit in the BART alternative was inconsistent with earlier EPA statements that installation of low-NOx burners would not affect the reductions the Station needs to achieve.

The panel responded that EPA’s statements related to BART and not the BART alternative and, therefore, found use of the credits permissible.

The panel’s opinion is here.

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