A three-judge panel at the U.S. Tenth Circuit Court of Appeals on July 23 tossed out a complaint filed by WildEarth Guardians over permitting for the coal-fired Pawnee power plant of Public Service Co. of Colorado, which is a unit of Xcel Energy (NYSE: XEL).
WildEarth Guardians sought review of an order of the U.S. Environmental Protection Agency denying in part that environmental group’s petition for an objection to a Title V operating permit issued by the Colorado Department of Public Health and Environment (CDPHE) to Xcel for the Pawnee plant in Morgan County, Colo. Pawnee is a one-unit, 505-MW plant that began operating in 1981.
WildEarth argued, among other things, that the permit needed to include a plan to bring the power station into compliance with the Clean Air Act’s Prevention of Significant Deterioration requirements. It contended these PSD requirements, which apply to the construction or “major modification” of a stationary source of air pollution, had been triggered when the station underwent major modifications in 1994, 1997, and possibly other years.
For support, WildEarth Guardians relied in part on a Notice of Violation (NOV) issued to Xcel by the EPA in 2002. However, the EPA denied the environmental group’s petition for an objection on this ground, holding that the NOV was insufficient to demonstrate noncompliance with the Clean Air Act and that the group’s additional evidence also failed to demonstrate a violation. The EPA furtherheld the state agency had adequately responded to WildEarth’s comments regarding the PSD requirements before it issued the permit. The EPA thus denied the petition for an objection on this ground as well.
“Nothing about the statute requires the EPA to find that a petitioner has demonstrated noncompliance simply by pointing to the existence of an NOV, and we will defer to the EPA’s persuasive conclusion that an NOV alone is insufficient to meet this burden of demonstration,” said the appeals court ruling.
The ruling added: “We further conclude that the agency did not act arbitrarily or capriciously in concluding that Petitioner failed to demonstrate noncompliance in this case. The agency held that Petitioner had not demonstrated PSD noncompliance because Petitioner’s evidence failed to show there had been a major modification as defined by the Colorado SIP, which requires, among other things, consideration of the actual emissions increase resulting from a particular modification, as well as ‘a determination of any other increases and decreases in actual emissions at the source that are contemporaneous with the particular change and are otherwise creditable.’”