EPA works out deal to settle lawsuit over two PacifiCorp coal plants in Utah

EPA has agreed to issue a Federal Implementation Plan covering these plants

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The U.S. Environmental Protection Agency will publish in the Sept. 22 Federal Register notice of a proposed consent decree to address a lawsuit filed by WildEarth Guardians, HEAL Utah, National Parks Conservation Association and Sierra Club over regional haze issues at the Hunter and Huntington coal-fired plants in Utah of PacifiCorp.

In 2012, EPA issued a rule partially disapproving a revision to a state implementation plan (SIP) submitted by Utah to address the state’s “best available retrofit technology” (BART) determination for Units 1 and 2 of the Hunter power plant and Units 1 and 2 of the Huntington power plant. In its lawsuit, Plaintiffs alleged that EPA has failed to meet the requirement of the Clean Air Act that the agency promulgate a federal implementation plan (FIP) within two years of partially disapproving a SIP, in whole or in part.

The proposed consent decree establishes proposed and final deadlines for EPA to take action to meet its obligations with respect to Utah.

Written comments on the proposed consent decree must be received within 30 days after the Sept. 22 notice.

When EPA disapproves a SIP submission in whole or in part, section 110(c) of the Clean Air Act requires EPA to promulgate a FIP within two years unless the state corrects the deficiency and EPA approves the plan revision. On July 22, the environmental groups filed an amended consolidated complaint in the U.S. District Court for the Northern District of Colorado alleging that EPA had failed to promulgate a FIP for Utah as required by the Clean Air Act. The original lawsuit was filed at that court on March 27.

The proposed consent decree would resolve the lawsuit by establishing that EPA must take proposed action by Nov. 19, 2015, and final action by March 31, 2016, to address the deficiencies in Utah’s SIP revision regarding the state’s BART determination for Units 1 and 2 of the Hunter power plant and Units 1 and 2 of the Huntington power plant.

PacifiCorp said the state's SIP amendment process should be allowed to run its course

In an Aug. 11 reply to the amended version of the complaint, PacifiCorp told the court: "PacifiCorp admits that Hunter Units 1 and 2, and Huntington Units 1 and 2, are coal-fired electric generating facilities located in Utah. PacifiCorp further asserts that Huntington Units 1 and 2 each have a net electrical generating capacity of 480 megawatts. PacifiCorp further asserts Hunter Units 1 and 2 each have a net electrical generating capacity of 446 megawatts. PacifiCorp further states that the allegations contained in paragraph 28 of Plaintiffs’ Complaint that Hunter and Huntington Units 1 and 2 are subject to BART is a legal conclusion. Except as expressly admitted, PacifiCorp denies the remaining allegations of paragraph 28 of Plaintiffs’ Complaint.

"PacifiCorp avers that the rule and regulations referenced by Plaintiffs speak for themselves. PacifiCorp specifically avers that Plaintiffs’ recitation of Utah’s regional haze state implementation plan history is incorrect and misleading. PacifiCorp further states that the allegations contained in paragraph 29 of Plaintiffs’ Complaint make a legal conclusion. Except as expressly admitted, PacifiCorp denies the remaining allegations of paragraph 29 of Plaintiffs’ Complaint.

"PacifiCorp specifically avers that the State of Utah proposed an initial revised Utah RH SIP revision on October 1, 2014, and more recently an updated revised Utah RH SIP to the Utah Air Quality Board on February 17, 2015. PacifiCorp further avers that the current revised Utah RH SIP was out for public comment until May 1, 2015, as part of the Utah state administrative process. PacifiCorp further avers that once the Utah state administrative process was completed, Utah submitted to EPA on June 11, 2015 the revised Utah RH SIP for EPA’s approval. PacifiCorp requests that the resolution of this action allow EPA sufficient time to reasonably consider and act on the revised Utah RH SIP, submitted June 11, 2015. PacifiCorp further states that the allegations contained in paragraph 30 of Plaintiffs’ Complaint make a legal conclusion to which PacifiCorp need not respond. Except as expressly admitted, PacifiCorp denies the remaining allegations of paragraph 30 of Plaintiffs’ Complaint. 31.

"PacifiCorp admits that EPA partially approved and partially disapproved Utah’s 2008 RH SIP revision on December 14, 2012. PacifiCorp further admits that EPA did not promulgate a RH FIP by January 14, 2015. PacifiCorp further avers that the statute referenced by Plaintiffs speaks for itself, and the statute specifically recognizes that a State may correct any deficiency and resubmit a revised RH SIP, which the State did in June 2015. PacifiCorp further states that the allegations contained in paragraph 31 of Plaintiffs’ Complaint make a legal conclusion. Except as expressly admitted, PacifiCorp denies the remaining allegations of paragraph 31 of Plaintiffs’ Complaint."

Barry Cassell
About the Author

Barry Cassell

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 26 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.

Barry can be reached at barryc@pennwell.com.

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