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Group asks court to toss US EPA's interpretation of key Clean Air Act provision

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Group asks court to toss US EPA's interpretation of key Clean Air Act provision

An October 2017 order from the U.S. Environmental Protection Agency established an illegal interpretation of a Clean Air Act provision intended to control pollution from fossil fuel-fired power plants, the Sierra Club argued to a federal appeals court Oct. 4.

The environmental advocacy group has asked the U.S. Court of Appeals for the District of Columbia to vacate and remand an EPA order related to PacifiCorp's coal-fired Hunter power plant in Utah, alleging the agency issued a new rule without public comment that allows power plants to skirt requirements under the New Source Review, or NSR, program. Under the NSR program, changes to fossil-fueled generators that are expected to create a "significant increase" in harmful emissions could trigger the need to install state-of-the-art pollution controls.

Title V of the Clean Air Act makes a distinction between "major" and "minor" sources of pollution. Permits for major pollution sources must include specific requirements that prevent new and modified facilities from causing a significant deterioration in national air quality standards.

In the case of the Hunter plant, state regulators issued a Title V permit in 1998 and released a draft renewal permit in 2015. The Sierra Club argued at that time that plant modifications undertaken in the late 1990s made the facility subject to major-source requirements under NSR. Rejecting the environmental group’s comments, Utah forwarded a proposed permit to EPA in January 2016. In April 2016, the Sierra Club petitioned the EPA to object to the Hunter permit.

In October 2017, the EPA denied the group's request. Utah had acted properly, the agency said, in incorporating the terms of the Hunter plant's previously issued minor source permit into its updated Title V permit "without further review." In doing so, the Sierra Club argued, the EPA reversed the agency's longstanding interpretation of the phrase "applicable requirement" under Title V. The new interpretation excludes "major" preconstruction requirements from a source's Title V permit even if the source has erroneously been issued a "minor" preconstruction permit, according to the group.

The Clean Air Act does not define "applicable requirement," the EPA noted in its order. "The interpretation today does not address anyone's ability to review under other titles of the [Clean Air Act] a determination that major NSR was not applicable," the agency said, adding that the new interpretation applies "moving forward" to all aspects of Title V permitting nationwide.

The order will also not prevent the agency from bringing enforcement actions against a source for violating major NSR requirements, the agency said: "Where an EPA investigation indicates that a source failed to obtain a required permit (even if a minor source permit was obtained), the EPA may seek to remedy its disagreement with state permitting decisions through enforcement actions."

The new policy could allow regulators to dismiss future citizen petitions under Title V that demonstrate that a state's prior minor source determinations was erroneous and that major NSR requirements apply, the Sierra Club argued.

The EPA has already used its order to reject four petitions addressing permits for sources in Texas, Louisiana, Tennessee and Arkansas, the group noted. It is asking the D.C. Circuit to vacate the order and remand the directive for the EPA to respond to the Sierra Club's original petition against the Hunter plant.

The case is Sierra Club v. EPA et al. (No. 18-1038).