EPA settles environmental group lawsuit over Sherburne County coal plant

A December 2012 lawsuit brought by environmental groups against the U.S. Environmental Protection Agency over coal-fired emissions from the Sherburne County power plant has been settled.

The magistrate judge handling the case at the U.S. District Court for the District of Minnesota on April 6 issued an order terminating the upcoming court proceedings in this case, saying without explanation that this “matter has been resolved.” An April 9 settlement conference was canceled. On or before April 8, counsel for the litigants needs to provide a timeline as to the time period for public comment on the proposed settlement, when the parties anticipate filing their request for a stay of the suit, when the EPA will issue its final rule, the date the stay of the suit would likely be lifted, and the approximate date when the case would ultimately be dismissed.

The April 6 order also said that hearings scheduled before District Judge Susan Richard Nelson on a motion to enter a Consent Decree (scheduled for July 10) and on the parties’ cross-motions for summary judgment (scheduled for November 6) have been canceled.

On March 25, the plaintiffs, including the National Parks Conservation Association, had filed with the court an amended version of their complaint. That filing said: “Over five years ago, on October 21, 2009, the Department of Interior formally certified to the Environmental Protection Agency (‘EPA’) that air pollutant emissions from Xcel Energy’s coal-fired Sherburne County Generating Station (‘Sherco’) were reasonably attributable to visibility impairment in Minnesota’s Voyageurs National Park and Michigan’s Isle Royale National Park. Exhibit A. The Department of Interior’s certification triggered a mandatory, non-discretionary duty on behalf of EPA to ‘identify and analyze for BART [best available retrofit technology] each existing stationary facility which may reasonably be anticipated to cause or contribute to impairment of visibility…where the impairment…is reasonably attributable to that existing stationary facility.’

“In June 2012, EPA indicated in the Federal Register that it intended to conduct a ‘rulemaking regarding RAVI BART for Sherco within the next few months,’ but EPA failed to act. Because EPA has failed to make any RAVI BART determinations for Sherco without unreasonable delay, Plaintiffs bring this action to secure an order from the Court that directs EPA to make such determinations for Sherco. This action is brought pursuant to the citizen suit provision of the Clean Air Act, Section 304(a), 42 U.S.C. §7604(a), to obtain an order compelling EPA to perform its nondiscretionary duty, by a date certain, to make RAVI BART determinations for Sherco. EPA’s failure to perform this duty within a reasonable time has deprived Plaintiffs’ members of health, welfare, and procedural protections provided by the Clean Air Act.”

Xcel Energy‘s (NYSE: XEL) Northern States Power subsidiary operates the Sherburne County plant, which is known as Sherco for short. The 2,222-MW Sherco plant is located at Becker, Minn., 45 miles northwest of the Twin Cities on the Mississippi River. It consists of Unit 1 (680 MW), Unit 2 (682 MW) and Unit 3 (860 MW).

Said Xcel’s Feb. 20 annual Form 10-K report about this case: “RAVI is intended to address observable impairment from a specific source such as distinct, identifiable plumes from a source’s stack to a national park. In 2009, the DOI certified that a portion of the visibility impairment in Voyageurs and Isle Royale National Parks is reasonably attributable to emissions from NSP-Minnesota’s Sherco Units 1 and 2. The EPA is required to make its own determination whether there is RAVI-type impairment in these parks and examine which sources may cause or contribute to any RAVI impact that is identified. After studying the national parks and evaluating multiple sources, if the EPA finds that Sherco Units 1 and 2 cause or contribute to RAVI in the national parks, the EPA would then evaluate whether the level of controls required by the MPCA is appropriate. The EPA has stated it plans to issue a separate notice on the issue of BART for Sherco Units 1 and 2 under the RAVI program.

“In December 2012, a lawsuit against the EPA was filed in the U.S. District Court for the District of Minnesota by the following organizations: National Parks Conservation Association, Minnesota Center for Environmental Advocacy, Friends of the Boundary Waters Wilderness, Voyageurs National Park Association, Fresh Energy and Sierra Club. The lawsuit alleges the EPA has failed to perform a nondiscretionary duty to determine BART for Sherco Units 1 and 2 under the RAVI program. The EPA filed an answer denying the allegations. The District Court denied NSP-Minnesota’s motion to intervene in July 2013. NSP-Minnesota appealed this decision to the Eighth Circuit, which on July 23, 2014, reversed the District Court and found that NSP-Minnesota has standing and a right to intervene.

“In June 2014, the EPA and the plaintiffs lodged a consent decree with the District Court. The public comment period on the draft consent decree has been completed. The EPA is evaluating comments and will determine whether to enter the consent decree with the District Court. The draft consent decree would establish a schedule whereby the EPA would issue a proposal on Feb. 27, 2015, or 30 days after the District Court enters the consent decree if the decree is entered after Feb. 27, 2015. The proposal would provide the EPA’s analysis of whether visibility impairment in the national parks is reasonably attributable to Sherco Units 1 and 2. If the EPA determines that it is, the draft consent decree requires the EPA to make a final RAVI BART determination for these units by Aug. 31, 2015. If the EPA determines that it is not, the EPA would not determine BART for Sherco Units 1 and 2. NSP-Minnesota filed comments opposing the proposed consent decree and will object to its entry given NSP-Minnesota’s right to intervene in the litigation and thus participate in the negotiation of any purported settlement of the case.”

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.