Appeals court rejects arguments over Nevada Power coal waste

A three-judge panel at the U.S. Ninth Circuit Court of Appeals rejected an appeal by the Moapa Band of Paiutes and the Sierra Club over coal waste disposal planning by Nevada Power that had been approved by the U.S. Bureau of Land Management.

The tribe and club had appealed a district court’s grant of summary judgment in favor of BLM and Nevada Power.

“The district court correctly determined that BLM complied with the National Environmental Policy Act (‘NEPA’) in evaluating the potential environmental consequences of the proposed expansion of the Reid Gardner Generating Station in its environmental assessment (‘EA’), and in deciding not to prepare an environmental impact statement (‘EIS’),” said the appeals court ruling.

The appeals court generally cited past case precedents that show the courts deferring to agency expertise in technical matters like this. “The district court correctly determined that, under this deferential standard, BLM had taken the requisite ‘hard look’ at the project’s potential environmental impacts,” the decision said. “The EA is poorly written in places, but BLM’s analysis is not so deficient as to be arbitrary or capricious.”

The district court correctly determined that BLM’s current regulations permit the disposal of hazardous waste on public lands under the Federal Land Policy and Management Act, the court added. “Even if BLM erred in designating the waste as nonhazardous, it nonetheless has the authority under its regulations to permit its disposal. In BLM’s EA, discussion of the potential hazardousness of the waste material went only to BLM’s analysis of its own authority to permit the disposal; it did not appear to factor into its finding of no significant impact. As it is clear that BLM would have reached a permissible finding of no significant impact even had it determined that the waste material was hazardous, any error in the EA was harmless…and did not constitute an impermissible post-hoc rationalization.”

In April 2006, Nevada Power applied for a right-of-way from BLM to use federal lands on a mesa next to Reid Gardner to build new evaporation ponds (to manage wastewater from the combustion process) and expand an onsite solid waste landfill (for disposal of solids from the combustion and pollution-control processes and evaporation ponds). Nevada Power used this project to support ongoing operations, move old evaporation ponds out of the floodplain of the nearby Muddy River, and provide landfill capacity for disposal of solids removed from the old ponds as they are closed. The new ponds and expanded landfill are designed with state-of-the-art standards to minimize environmental impacts and would be located farther from the Moapa reservation, the utility argued in this case.

Notable is that Nevada Power, a unit of NV Energy (NYSE: NVE), is preparing to close the Reid Gardner power plant later this decade due largely to clean-air concerns, including regional haze mandates.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.