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October 09, 2013
BART at center of regional haze ruling

For the electric power industry, there were mixed results from multiple legal challenges to an EPA final rule addressing visibility in North Dakota (North Dakota v. EPA).  Promulgated April 6, 2012, the rule approved in part and disapproved in part two state implementation plans (SIPs).  The rule also contained a federal implementation plan (FIP) to replace those portions of the SIPs that were disapproved. 

For different reasons, the rule was challenged by North Dakota, power companies that are required to control air pollution from their plants, and environmental groups.  The U.S. Court of Appeals for the 8th Circuit consolidated the petitions and responded to each in a single opinion.

CAA sections 169A and 110

The case concerns two sections of the Clean Air Act (CAA).  Under Section 169A, a state must establish goals that provide for reasonable progress toward achieving natural visibility conditions in the largest federal national parks and wilderness areas (called Class I areas).  To that end, states must obtain EPA’s approval of SIPs that include limitations on air pollutants from certain power plants based on the state’s determination of the best available retrofit technology (BART) for the plant.  BART determinations must include consideration of the technology available, the costs of compliance, any pollution control equipment in use at the source, the remaining useful life of the source, and the degree of improvement in visibility that may reasonably be anticipated to result from the use of such technology.

North Dakota provided the EPA with one SIP to comply with its Section 169A regional haze obligations and a second SIP to comply with additional visibility standards related to interstate pollution under CAA Section 110.  While the petitions to the court came from different parties, much of the case focuses on one subject—which version of BART has the strongest legal foundation. 

8th Circuit conclusions

Included among the 8th Circuit’s findings are the following:

  • The EPA had the legal authority to reject one of North Dakota’s BART analyses in its SIP because the state had miscalculated the cost of compliance.  The state argued that it had met all its analysis obligations, that EPA’s role is merely to ensure that the state’s BART analysis was complete, and that the cost miscalculation should not invalidate the SIP.  Here, the 8th Circuit sided with the EPA, noting that the Agency’s role is “more than the ministerial task of routinely approving SIP submissions.”
  • EPA’s refusal to consider a voluntary pollution control measure undertaken at one of the power plants was arbitrary and capricious and not entitled to deference.  The Agency argued that the pollution control technology installed at the plant did not warrant consideration because it was not included in the SIP.  The 8th Circuit found that the relevant CAA language did not allow the Agency to deny consideration of pollution control technology being used effectively at the plant.
  • North Dakota’s use of a model to show incremental visibility progress resulting from installation of pollution controls at one power plant underestimated the benefits of other control options.  The state argued that by using the model, it satisfied its statutory responsibility.  The court stated that North Dakota was free to use any model it wanted to but that that the EPA was also legally entitled to reject the use of that model.  In this case, the Agency disapproved the model because its use would rarely if ever demonstrate that emissions reductions at a single source would have an appreciable effect on incremental visibility improvement in a given area. 
  • A challenge by environmental groups to EPA’s approval of an emissions limit established by North Dakota for a power plant was rejected by the court even though the Agency disagreed with aspects of how the state conducted its visibility improvement analysis.  The environmental groups stated that the EPA was required to establish an emissions limit that was achievable with a more costly technology than the one the state approved.  But, despite differences the EPA had with North Dakota’s analysis, the Agency could not conclude that the state’s emissions limit did not constitute reasonable progress.  Here, the 8th Circuit agreed with the EPA.
  • North Dakota’s reliance on a 2006 EPA guidance document to meet its Section 110 interstate transport visibility requirements did not prevent the EPA from rejecting the SIP.  “The 2006 Guidance clearly placed the State on notice that EPA was not issuing binding regulations but was instead only issuing suggestions that left EPA free ‘to follow or deviate from this guidance, as appropriate,’” said the court. 

North Dakota v. EPA

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