Jump to Navigation
Jump to Content

North Dakota v. United States Environmental Protection Agency

ELR Citation: 43 ELR 20219
Nos. Nos. 12-1844 et al., (8th Cir., 09/23/2013)

The Eighth Circuit vacated and remanded EPA's best available retrofit technology (BART) determination for a large power plant in North Dakota, but otherwise upheld EPA's partial disapproval of two SIPs submitted by North Dakota to meet the CAA's visibility requirements as well as the Agency's federal implementation plan (FIP) addressing those portions of the SIPs that were disapproved. EPA's refusal to consider the existing pollution control technology in use at the power plant because it had been voluntarily installed was arbitrary and capricious. Just as the state was required to properly consider each statutory factor in the BART analysis in the implementation of its SIP, so too was EPA in the promulgation of its FIP. There is no ambiguity in the kind of technologies that must be considered under CAA §169A(g)(2); as such, EPA's interpretation was not entitled to deference. The court, therefore, vacated that portion of the FIP. But the court denied the remainder of the petitions for review.