ELR Citation: 46 ELR 20039
No(s). 13-70366, -70410 (9th Cir. Feb 24, 2016)

The Ninth Circuit held that EPA did not act arbitrarily and capriciously when it disapproved in part Arizona's regional haze SIP and issued a replacement federal implementation plan (FIP) in place of the disapproved SIP elements. First, EPA did not act arbitrarily and capriciously when it disapproved in part the SIP's "best available retrofit technology" (BART) for a coal-fueled power plant in eastern Arizona. EPA reasonably concluded that Arizona's cost and visibility impact analyses for the plant suffered from significant analytical defects and that the SIP did not provide a reasoned explanation of the bases for the ultimate BART determination. Although CAA §169A affords the states substantial authority to determine BART controls, the combination of these defects provided EPA reasonable grounds upon which to disapprove Arizona's BART determinations as to nitrogen oxide (NOx) emissions limits at the power plant. Nor did EPA err procedurally in promulgating the FIP in the same rule as its partial disapproval of the SIP. The court also rejected claims that the FIP's BART determinations for the power plant were arbitrary and capricious. But because EPA has since proposed to revise the FIP's NOx emissions for the plant, the court declined to rule on the reasonableness of its emissions limits, as they are likely to be altered. The court therefore stayed this aspect of the proceedings until EPA concludes the administrative process and issues its final revised FIP.