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Northern Plains Resource Council v. EPA

Citation: 11 ELR 20635
No. No. 79-7618, 645 F.2d 1349/16 ERC 1790/(9th Cir., 05/26/1981)

The court upholds the Environmental Protection Agency's (EPA's) decision to grant a conditional "prevention of significant deterioration (PSD) of air quality" permit for two coal-fired power plants issued pursuant to the Clean Air Act. Plaintiffs argued that the power plants will not use the best available control technology (BACT) as required by § 165(a)(4) and thus will have a particulate emission rate which exceeds the 1978 new source performance standards (NSPS) in violation of § 165(a)(3). The court finds that although the power plants will not meet the 1978 NSPS standards for particulates and nitrogen oxides, they do satisfy the 1971 NSPS standards. Based on the definition of "commenced" contained in regulations implementing § 111 of the Act, concerning the NSPS program, not the definition provided in § 169(2)(A), concerning the statutory PSD program, the court determines that construction of the plants commenced prior to the date for application of the 1978 standards. Thus, the 1971, not the 1978, standards apply. The differences between the NSPS and the PSD programs and the legislative history of the Act support this conclusion. The court also upholds EPA's approval of the pollution abatement system as BACT, which EPA properly determined on a case-by-case basis. Finally, the court rules that EPA's refusal to validate its air dispersion model used for predicting concentrations of pollutions was not arbitrary and capricious.

Counsel for Petitioner
James A. Patten
Northern Plains Resource Council
419 Stapleton Bldg., Billings MT 59101
(416) 248-1154

Gail A. Norton
Mountain States Legal Foundation
1200 Lincoln St., Denver CO 80203
(303) 861-0244

Counsel for Respondent
Elizabeth Stein
Land and Natural Resources Division
Department of Justice Washington DC 20530
(202) 633-4160

Before TANG, SCHROEDER and NELSON, Circuit Judges.