Appeals court rejects Nebraska appeal of EPA ruling on its regional haze plan

A three-judge panel at the U.S. Eighth Circuit Court of Appeals on Feb. 3 rejected a petition by the state of Nebraska for review of a regional haze decision from the U.S. Environmental Protection Agency related to the coal-fired Gerald Gentleman power plant.

In July 2012, EPA partially disapproved the Nebraska Regional Haze State Implementation Plan. EPA specifically rejected Nebraska’s best available retrofit technology (BART) determination for the Gerald Gentleman Station, substituting a Federal Implementation Plan. Nebraska petitioned for review. The National Parks Conservation Association and Sierra Club not only opposed Nebraska’s petition but also sought review of EPA’s federal plan. Plant operator the Nebraska Public Power District intervened on behalf of EPA, opposing the conservation organizations. "Having jurisdiction under 42 U.S.C. § 7607(b)(1), this court denies the petitions for review," said the Feb. 3 decision.

Nebraska had several years ago submitted a state implementation plan to EPA. Determining BART for the Gerald Gentleman plant, Nebraska’s plan evaluated wet and dry Flue Gas Desulfurization (FGD) and Dry Sorbent Injection (DSI) for SO2 control. Nebraska asserted that the costs for FGD controls “were reasonable on a cost per ton basis, but not on a dollars per deciview basis.” According to EPA, however, Nebraska “only provided visibility information for DSI at Badlands” so the cumulative effect of DSI is unknown. Badlands is one of the protected areas under the regional haze program.

Nebraska concluded that BART for the station requires no SO2 controls.” EPA disagreed. In its final ruling, EPA disapproved Nebraska’s determination that BART does not require SO2 controls for the station. EPA cited errors in “Nebraska’s cost analysis for FGD controls, the reasonableness of the costs of controls, the significant visibility improvement achieved as a result of installing FGD or DSI, and improper rejection of DSI.” EPA then promulgated its federal implementation plan.

EPA did decline to “require specific SO controls on [the Station] as a geographic enhancement” in addition to the overlapping Transport Rule, which came into effect during the process of working out the regional haze compliance plan. Nebraska and the conservation organizations petitioned for review. Nebraska claimed that EPA should have approved its plan. It argued that EPA exceeded its statutory authority in disapproving Nebraska’s BART determination for Gerald Gentleman.

The appeals court panel ruled in part: "Because this court finds EPA properly relied on the Transport Rule for the Station, EPA did not abuse its discretion in rejecting a geographic enhancement." At another point, the court ruled: "Given Nebraska’s errors and EPA’s determination that Nebraska’s action was unreasoned, this court denies Nebraska’s petition for review."

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.