EPA Haze Controls for Wyoming Blocked By Tenth Circuit; State Cited Inconsistencies

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By Tripp Baltz

Sept. 9 — A federal appeals court Sept. 9 stayed the Environmental Protection Agency's rejection of part of Wyoming's plan for addressing regional haze.

The U.S. Court of Appeals for the Tenth Circuit granted a stay sought by Wyoming and two power companies—Basin Electric Power Cooperative and PacifiCorp—in addition to a request by the companies that the deadline for compliance be extended beyond March 2019 for the duration of the stay.

The court granted the request for four electricity generating units at power plants owned by the two companies.

In granting the stay, the court said it considered four factors, including the moving party's likelihood of success on appeal, whether the absence of a stay will harm the moving party and whether the issuance of a stay would injure other parties.

EPA in January disapproved part of Wyoming's state implementation plan (SIP) for improving visibility in national parks and wilderness areas, specifically its best available retrofit technology determinations for nitrogen oxide emissions at the four generating units and a fifth station, Dave Johnson Unit 3.

Federal Plan Issued

The EPA issued its own federal implementation plan for the five units, requiring them to install additional pollution controls for NOx emissions by March 2019.

The state and the two companies sued the EPA in March and filed motions for a stay pending appeal.

In opening briefs, Wyoming said the EPA took an inconsistent approach in disapproving part of its regional haze plan. In reviewing the state's methods for devising BART requirements, the EPA changed its own technical evaluations and its reasons for disapproving part of the SIP, according to the brief.

After the ruling, Wyoming Gov. Matt Mead (R) issued a statement saying the decision “sends a message” to the federal government.

“The rejection of Wyoming's plan by the EPA was wrong,” he said. “The regional haze rule is part of the federal Clean Air Act, which gives states ‘wide discretion’ to meet the objectives of the law.”

To contact the reporter on this story: Tripp Baltz in Denver at abaltz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The order in Wyoming v. EPA is available at http://www.bloomberglaw.com/public/document/State_of_Wyoming_v_EPA_et_al_Docket_No_1409529_10th_Cir_Mar_28_20/3.