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Sierra Club v. EPA

ELR Citation: 37 ELR 20226
Nos. No. 06-3907, (7th Cir., 08/24/2007)

The Seventh Circuit denied a petition to review a U.S. Environmental Protection Agency (EPA) Environmental Appeals Board decision denying an environmental group's claims that the Agency violated the Clean Air Act's best available control technology (BACT) requirement and the ozone national ambient air quality standards in issuing a permit for a coal-fired electrical generating plant in southern Illinois. The plant has been sited next to a coal seam, which is believed to contain enough high-sulfur coal to supply the plant's fuel needs for 30 years. The plant is designed so that it will receive the coal directly from the seam. EPA's determination that importing low-sulfur coal rather than relying on locally available high-sulfur coal would constitute a redesign of the proposed facility rather than a BACT was not arbitrary. Refining the statutory definition of "control technology" to exclude redesign is the kind of judgment by an administrative agency to which a reviewing court should defer. And EPA granted the permit not because it thinks that burning low-sulfur coal would require the redesign of the plant (it would not), but because receiving coal from a distant mine would require the plant to reconfigure the plant as one that is not co-located with a mine, which would constitute a redesign. In addition, EPA was entitled to use the compliance measure used for the older, one-hour ozone standard pending adoption of a compliance measure tailored to the newer, eight-hour ozone standard to demonstrate that if the plant complied with the older measure it would be unlikely to violate the new standard.