Sierra Club seeks court action forcing EPA to issue haze plan for Arkansas

The Sierra Club on Sept. 8 filed a motion at the U.S. District Court for the Eastern District of Arkansas for summary judgment in its federal lawsuit to enforce clean air safeguards aimed to clean up the air in national wilderness areas and other federal lands in Arkansas and Missouri largely caused by coal-fired power plants.

The lawsuit alleges that the U. S. Environmental Protection Agency neglected its duties to create and finalize a plan to reduce air pollution that causes haze.

“A bipartisan Congress and a Republican president ordered the EPA and states to protect our national parks and federal lands from air pollution with the 1990 Clean Air Act. After more than 20 years, Arkansas and the EPA have failed,” said Glen Hooks, Director of the Sierra Club’s Arkansas Chapter, in a Sept. 8 statement. “The bottom line is that for years neither the state nor the EPA followed the law – nothing got moving on this issue until Sierra Club filed suit.”

Without a federal plan, the Caney Creek wilderness area and Upper Buffalo River area in Arkansas, as well as the Hercules Glades wilderness area in the Mark Twain National Forest of southern Missouri, lack common sense protections, the club said.

Said the Sept. 8 court filing: “Both the State of Arkansas and EPA have violated their duties under the Clean Air Act, although only the EPA’s violations are at issue in this case. The State of Arkansas missed the 2007 deadline for submitting a haze plan to EPA, and did not submit a regional haze state implementation plan (‘SIP’) until September 2011. EPA disapproved significant portions of the State’s plan on March 12, 2012 (with an effective date of April 11, 2012), because the plan failed to comply with the Clean Air Act.

“Having disapproved the State’s plan, EPA was obligated to issue a federal implementation plan (‘FIP’) within two years of the disapproval (i.e., by April, 2014). More than a year after that mandatory deadline, however, EPA has not only failed to issue a final, federal plan, but has suggested that it need not promptly comply with its statutory obligation to issue a federal plan.

“It is well established that EPA’s obligation to issue a federal plan within two years of disapproving a state plan is a non-discretionary duty under the Clean Air Act. The undisputed facts indicate that EPA violated, and continues to violate, this mandatory, non-discretionary duty. Therefore, Sierra Club is entitled to judgment as a matter of law finding that EPA has violated its statutory obligation to finalize a federal haze plan for the State of Arkansas within two years of disapproving the State’s plan. Sierra Club respectfully requests that this Court order EPA to issue a final regional haze rule for Arkansas by April 15, 2016. Absent an order from this Court, EPA’s ongoing failure to comply with the law will continue indefinitely.”

Entergy Corp. (NYSE: ETR), which owns the coal-fired Independence and White Bluff plants in Arkansas, said about this matter in its Aug. 6 quarterly Form 10-Q statement: “In June 2005 the EPA issued its final Clean Air Visibility Rule (CAVR) regulations that could potentially result in a requirement to install SO2 and NOx pollution control technology as Best Available Retrofit Control Technology (BART) on certain of Entergy’s fossil generation units. The rule leaves certain CAVR determinations to the states. The Arkansas Department of Environmental Quality (ADEQ) prepared a State Implementation Plan (SIP) for Arkansas facilities to implement its obligations under the CAVR.

“In October 2011 the EPA released a proposed rule addressing the Arkansas Regional Haze SIP. In the proposal the EPA disapproved a large portion of the Arkansas Regional Haze SIP, including the emission limits for NOx and SO2 at White Bluff. The final rule was published, mostly unchanged, in March 2012 and became final in April 2012. This triggered a two-year timeframe in which the EPA was required to either approve a revised SIP issued by Arkansas or issue a Federal Implementation Plan (FIP). This two-year time frame expired in April 2014. Pursuant to a consent decree between the Sierra Club and the EPA, the agency is to issue a final FIP for Arkansas Regional Haze by no later than December 15, 2015, but the EPA has stated that it does not anticipate it can meet the current deadline. In April 2015 the EPA published a proposed FIP for Arkansas, taking comment on requiring installation of scrubbers and low NOx burners on both units at the White Bluff plant and both units at the Independence plant and NOx controls at the Lake Catherine plant. Entergy is reviewing the proposed FIP and expects to comment by the deadline. These decisions could impact the timing and level of control installation at Entergy’s coal units in Arkansas.”

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.