9th Cir. Tosses MT Coal-Emission Standards

     (CN) – An operator of two Montana coal plants won a victory over the Environmental Protection Agency after the Ninth Circuit tossed out new emission-reduction standards.
     The EPA will have to try again to set pollution limits under the Montana Regional Haze Implementation Plan, which appeared nearly two years ago in the Federal Register.
     Under the Clean Air Act’s visibility-protection mandates, states and the EPA are required to eliminate human-caused haze from national parks and other federal lands.
     The EPA drafted the plan for Montana in 2006, after the state refused to do so.
     Environmentalists and coal-industry representatives objected to the plan for different reasons, with conservationists claiming it would not reduce pollution enough and coal producers claiming the plan would cost too much for limited air-quality improvements.
     The National Parks Conservation Association, Montana Information Center and the Sierra Club filed one challenge, claiming that the EPA should have required the Colstrip and Corette coal plants do more to achieve emission reductions.
     PPL Montana, operator of the two plants, also challenged the emission rules, claiming the EPA did not have any legal basis for tightening the standards. The company also complained that implementation would cost the plants millions of dollars.
     Montana’s “largest stationary source of air pollution” is the Colstrip plant in southeastern Montana, and causes emissions that hamper visibility in Yellowstone and Theodore Roosevelt National Parks and nearby wilderness areas, according to the environmentalists’ brief.
     The Corette plant in Billings is much smaller but has outdated pollution controls, according to the environmentalists.
     Both groups argued before the Ninth Circuit last year that the EPA should scrap the plan and start over.
     Yesterday, a three-judge panel agreed, but the ruling cited the plant operator’s objections.
     Writing for the majority, Circuit Judge Diarmuid O’Scannlain said the new rule “offers essentially no reasoning” as to why it deemed certain expensive emission control technology to be efficient and cost-effective.
     “To be sure, the Act and the regulations do not specifically require that EPA explain its cost-effectiveness decisions through use of a ‘bright line’ rule. But the law does require EPA to ‘cogently explain why it has exercised its discretion in a given manner,'” O’Scannlain wrote for the panel.
     But the panel credited the agency for its response to environmentalists’ concerns that it had used improper baselines to calculate emission reductions at the plants, finding regulators “offered a reasoned response” the court would defer to.
     However, the EPA “failed to explain what makes a cost reasonable in light of potential visibility benefits” as required by law, the panel said.
     “This improvement very well may be necessary and ultimately cost-effective. But EPA has supplied no reasons justifying that determination. Based on its explanation, the rule’s reader is left to wonder what rationale EPA used to determine cost-effectiveness. Again, the law requires a reasoned answer to that question,” O’Scannlain wrote.
     The EPA’s requirement that the Colstrip plant install scrubbers is arbitrary and capricious because the agency failed to explain why the technology will improve emissions, the panel found – vacating portions of the rule setting emission limits at the two coal plants and remanding to the EPA for further consideration.
     In a concurring opinion, Circuit Judge Marsha Berzon said she wanted to underline the panel “is not impugning EPA’s use” of the CALPUFF model, which is used to estimate an emissions source’s impact on visibility.
     Earthjustice attorney Jenny Harbine said in a statement, “It’s time for EPA to finally develop a meaningful plan to clean up the air over our region’s most cherished lands, including Yellowstone National Park and the UL Bend Wilderness. The court’s ruling means that EPA will have to clean up air pollution from coal burning at Colstrip Units 1 and 2, which disproportionately dirties the air over these spectacular Northern Rockies landscapes.”
     Lisa Blatt, with Arnold and Porter, represented PPL Montana and did not respond to a request for comment by press time.

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