Montana Emissions Plan Backed by 9th Circuit

     (CN) – The 9th Circuit has shut down a Montana sulfur-recovery plant’s long-running challenge to federal emissions standards.
     For more than 17 years Montana Sulphur and Chemical Company has fought the Environmental Protection Agency’s actions related to air quality in Billings, where the company recovers sulfur gas from a nearby ExxonMobil petroleum refinery.
     Montana Sulphur took issue first with a 1993 EPA action that started the review process of a State Implementation Plan (SIP) governing sulfur dioxide emissions. The state health department proposed a partial change to the plan, but the EPA disapproved that proposal in 2002.
     Then in April 2008, the EPA adopted a final rule designed to fill the gaps it perceived in the sulfur dioxide (SO2) plan.
     Montana Sulphur sought review of all three decisions, and the 9th Circuit consolidated the petitions for review.
     Specifically, the company challenged the timeliness of the 2008 Federal Implementation Plan (FIP) and the findings it made, such as how it computed the height of the company’s stacks and its limits on flares – a sudden release of gas during maintenance or an emergency. Montana Sulfur also challenged the relative worthiness of the EPA’s modeling technology.
     Denying both of the petitions, a three-judge panel of 9th Circuit judges in Seattle rejected all of the company’s complaints in a ruling published Thursday.
     Montana Sulphur had claimed that the EPA lacked the authority to ask the health department for SIP revisions in 1993 because there was nothing wrong with the state’s emission standards at the time. The company pointed out there were no actual violations in the area prior to the call, and that the agency had based its decision on computer modeling, which did not properly reflect reality.
     The panel disagreed, noting that “the Clean Air Act expressly recognizes modeling as an appropriate regulatory tool.”
     The judges were similarly unconvinced by each of the company’s myriad technical objections, and concluded in the end that “EPA did not act arbitrarily or capriciously or abuse its discretion by making the SIP Call, disapproving portions of the revised SIP, or promulgating the requirements set forth in the FIP.”

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