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National Parks Conservation Ass'n v. U.S. Environmental Protection Agency

ELR Citation: 45 ELR 20111
Nos. 12-73710, -73757, (9th Cir., 06/09/2015)

The Ninth Circuit granted in part and denied in part petitions for review challenging EPA's federal implementation plan to reduce regional haze at two power plants in Montana. The owner and operator of the plants, as well as environmental groups, filed separate petitions for review, and the court agreed with petitioners on some of their claims. The Agency's best available retrofit technology (BART) determination for nitrogen oxide and sulfur dioxide emissions at units 1 and 2 of the first plant was arbitrary and capricious, as the Agency failed to explain inconsistencies between its BART determinations for this plant and the second plant. Nor did EPA meaningfully address the operator's comments concerning the Agency's chosen visibility model in determining BART at the power plant. But EPA's decision not to require any additional emission-reducing technology for units 3 and 4 at the plant did not violate the CAA's reasonable progress requirements, as urged by the environmental petitioners. As for the second power plant, EPA's determination that installing additional technology to control emissions was not cost-effective was arbitrary and capricious: again, the Agency failed to provide sufficient explanation. However, the court rejected arguments that EPA was required to proceed with the remaining BART analysis after the Agency determined the plant already had BART technology in place, as the regional haze rule authorized EPA to skip the remaining analyses. In addition, EPA properly set emissions limits for the plant on a 30-day rolling average. The court therefore vacated portions of the rule and remanded to EPA for further proceedings.