Question

As a part of the federal Clean Air Act Amendments Congress established a national goal of preventing future and resolving existing regional haze in national parks and wilderness areas when the visibility impairment results from manmade air pollution. The law requires states to submit implementation plans to the United States Environmental Protection Agency (EPA). The implementation plans must include identifying major industrial sources of air pollution that have caused or contributed to visibility impairment in national park and wilderness areas.

In the state implementation plan, any facility identified as a major source of air pollution must reduce air pollution by installing the best available retrofit technology (BART)—as determined by the state. To determine the BART, the law requires the following factors be considered: (1) the technology available, (2) the costs of compliance, (3) the energy impacts and non-air quality environmental impacts of compliance, (4) any pollution control equipment currently being used at the source, (5) the remaining useful life of the source, and (6) the degree of improvement in visibility reasonably anticipated to result from the use of such technology. The law requires the EPA Regional Administrator—“after an opportunity for a public hearing”—to approve or disapprove a state’s determination of the BART and the emission limits for any identified source. The legislative history for the Clean Air Act doesn’t indicate what type of hearing is required or the specific procedures to be used in the “public hearing.”

A party may request the EPA Administrator reconsider the approval or disapproval of the state’s BART determination, but that request for reconsideration doesn’t extend the time for filing a petition for judicial review or postpone the effectiveness of the action. Any Petition for Judicial Review of the BART determination must be filed in the District of Columbia Court of Appeals within 60 days of the Regional Administrator’s decision of the approval or disapproval of the BART determination.

If a facility fails to install the air pollution control measures required by the BART determination by the deadline set forth in the determination, the EPA can bring an action in court to enforce the BART determination, which could include imposing a substantial fine.

The state of West Dakota has identified the Poison Valley Power Plant—a coal-fired power plant in West Dakota—as a major source of air pollution contributing to visibility impairment in White Hills National Park. The West Dakota Department of Natural Resources issued a determination that the best available retrofit technology (BART) for the Poison Valley Power Plant is Selective Noncatalytic Reduction (SNCR) technology and set an emission limit of 0.20 lbs/MMBtu (pounds per million British thermal units).

In its determination, the state rejected a proposal by the Stormy Plateau Tribe, an Indian tribe with a reservation located within a mile of the Poison Valley Power Plant, and an environmental group, Citizens Advocating Renewable Energy (CARE) to use Selective Catalytic Reduction (SCR) technology—a more costly but more effective emission-reducing technology. The state also rejected the Poison Valley Power Plant’s proposal, which was that no additional emissions controls should be installed because the new pollution control equipment would be too expensive and could close the plant. The basis for the state’s BART determination was that additional emission controls were required because Poison Valley Power Plant was a substantial contributor to the haze problem in White Hills National Park. In terms of the choosing SNCR over SCR, the state determined the estimated 5 percent increase in visibility improvement using SCR technology was outweighed by the increased cost of SCR. State documents estimated SNCR technology would cost about $4.3 million per year compared to $16.3 million per year for SCR technology.

The Region 25 Office of the United States EPA issued the attached notice to interested parties on July 15, 2017. The notice was posted on the EPA Region 25 Facebook page and the notice was emailed to all the parties who participated and offered comments to the state of West Dakota DNR in its BART proceeding.Poison Valley Power Plant, Stormy Plateau Tribe, and CARE all opposed West Dakota’s determination of the BART (for different reasons). Each objected to the “open-house” process outlined in the notice and contended a trial-type hearing was required by the US Constitution and federal APA to challenge West Dakota’s determination of the BART and the emission limits. In addition, Poison Valley Power Plant, Stormy Plateau Tribe and Care requested the underlying data used by West Dakota officials in making its BART determination be disclosed and an opportunity to cross-examine a DNR official about the data. Regional Administrator Giva Hoot denied the requests for a trial-type hearing, disclosure of data, and cross-examination. The parties provided written and oral comments at the open house. Regional Administrator Giva Hoot approved West Dakota’s determination that SNCR technology is the BART for Poison Valley Power Plant and approved the 0.20 lbs/MMBtu limit on NOx, but she offered no reasons for her action. Instead, on October 1, 2017, she mailed a letter to all those participating in the open house and posted a statement on www.facebook.com/EPA/Region25 stating she had the discretion to approve or deny the BART determination and no law or rule required her to give her reasons. The statement simply

July 15, 2017                          NOTICE

ENVIRONMENTAL PROTECTION AGENCY ANNOUNCES PROPOSED BEST AVAILABLE RETROFIT TECHNOLOGY (BART) DETERMINATION, OPEN HOUSE, AND REQUEST FOR PUBLIC COMMENT

The Region 25 Office of the United States Environmental Protection Agency (EPA) requests public comment on a proposed state implementation plan for implementing Best Available Retrofit Technology (BART) at Poison Valley Power Plant located near Peabody, West Dakota. The Clean Air Act’s Regional Haze Rule requires the use of BART at older coal-fired power plants like PVPP to reduce haze and improve visibility in nearby national parks and wilderness areas.

EPA is proposing to approve West Dakota’s determination that Selective Non-catalytic Reduction (SNCR) technology is the BART for Poison Valley Power Plant and its limits on emissions of nitrogen oxide (NOx) is set at 0.20 lbs/MMBtu (pounds per million British thermal units), which must be implemented by January 1, 2020.

EPA is holding an open house on the proposal and an opportunity for the public to comment on September 1, 2017, at the Peabody High School in Peabody, West Dakota. Any person may provide written comments and/or oral comments regarding our proposal at the open house.

If you have questions about the public hearings or how to submit comments, please contact Giva Hoot, EPA Region 25 Administrator at 415-947-4139, or at [email protected]. Please bring this notice to the attention of all persons who may have an interest in our proposal.

Posted on www.facebook.com/EPA/Region25 and sent to interested parties

GIVA HOOT

Region 25 Administrator

Poison Valley Power Plant, Stormy Plateau Tribe, and CARE all opposed West Dakota’s determination of the BART (for different reasons). Each objected to the “open-house” process outlined in the notice and contended a trial-type hearing was required by the US Constitution and federal APA to challenge West Dakota’s determination of the BART and the emission limits. In addition, Poison Valley Power Plant, Stormy Plateau Tribe and Care requested the underlying data used by West Dakota officials in making its BART determination be disclosed and an opportunity to cross-examine a DNR official about the data. Regional Administrator Giva Hoot denied the requests for a trial-type hearing, disclosure of data, and cross-examination. The parties provided written and oral comments at the open house. Regional Administrator Giva Hoot approved West Dakota’s determination that SNCR technology is the BART for Poison Valley Power Plant and approved the 0.20 lbs/MMBtu limit on NOx, but she offered no reasons for her action. Instead, on October 1, 2017, she mailed a letter to all those participating in the open house and posted a statement on www.facebook.com/EPA/Region25 stating she had the discretion to approve or deny the BART determination and no law or rule required her to give her reasons. The statement simply concluded “West Dakota’s determination is approved.”

In individual petitions for judicial review filed in federal court on November 1, 2017, Poison Valley Power Plant, Stormy Plateau Tribe, and CARE all challenged Regional Administrator Giva Hoot’s decision to approve West Dakota’s BART determination and emission limit for the Poison Valley Power Plant and the process used to approve the determination as violating the Constitution and the federal APA. None of the parties requested reconsideration of the decision before filing their lawsuits.

In its complaint, Poison Valley Power Plant alleged the approval violated the Clean Air Act and was arbitrary and implementing SNCR technology would cause economic hardship for the company.

In its complaint, Stormy Plateau Tribe alleged that the approval violated the Clean Air Act, just rubber-stamped the state’s action, and ignored the evidence that Poison Valley Power Plant’s mercury emissions were causing health problems for tribal members, which would be reduced by implementing Selective Catalytic Reduction (SCR) technology.

CARE’s members all reside in South Dakota and its complaint alleged that the EPA’s selection of SNCR technology as the BART for Poison Valley Power Plant might be used as precedent in its upcoming review of South Dakota’s state implementation plan. CARE alleged its members are concerned about the haze problems in Mount Rushmore and Badlands National Parks in South Dakota and contend that only SCR technology will fix the pollution problems with the South Dakota power plants.

You are the judge and must write a decision analyzing the legality of EPA Regional Administrator Giva Hoot’s actions, and in doing so, address the following points (make sure you define and explain the important terms and principles mentioned below):

Assume the decision can be reviewed by the court in answering all the questions below.

Applying the principles of Citizens to Preserve Overton Park v. Volpe, explain what you—as the reviewing judge—would do to overcome the failure of the EPA Regional Administrator to provide any justification for her decision and why??

Answer 1

The U.S. Environmental Protection Agency (EPA) administers the laws enacted by Congress and signed by the President to protect people's health and the environment. This Regulatory Plan contains information on some of our most important upcoming regulatory and deregulatory actions. As always, our Semiannual Regulatory Agenda contains information on a broader spectrum of EPA's upcoming regulatory actions.The Environmental Protection Agency (EPA) publishes the SemiannualRegulatory Agenda to update the public about:

Regulations and major policies currently under development,

Reviews of existing regulations and major policies, and

Regulations and major policies completed or canceled since the last Agenda.

Our primary objective is to protect human health and the environment. To achieve this objective and ensure that our decisions are cost-effective and fully protective, we conduct high quality scientific, economic, and policy analyses.

Since the enactment of the Clean Water Act and the Safer Drinking Water Act, tremendous progress has been made toward ensuring that Americans have safe water to drink and generally improving the quality of the Nation's waters. While progress has been made, numerous challenges remain in such areas as nutrient loadings, storm water runoff, invasive species and drinking water contaminants. These challenges can only be addressed by working with our State and tribal partners to develop new and innovative strategies in addition to the more traditional regulatory approaches. EPA plans to address the following challenging issues in rulemakings

On March 3, 1971, the U.S. Supreme Court ruled on Citizens to Preserve Overton Park v. Volpe, upholding the "feasible and prudent" clause. The Court held that summary judgment was improperly granted. While the Secretary was not required to make formal findings, the Secretary's sole reliance on litigation affidavits was inadequate. The Secretary's decision did not fall into the Administrative Procedure Act's exception for action "committed to agency discretion. The Secretary of Transportation (defendant) authorized the expenditure of federal funds for the construction of a six-lane interstate highway through a public park in Memphis, Tennessee. Private citizens and conservation organizations (plaintiffs) sought to halt construction, arguing that the Secretary violated portions of the Department of Transportation Act of 1966 and the Federal-Aid Highway Act of 1968 that prohibit the use of federal funds to finance the construction of highways through public parks if a “feasible and prudent” alternative route exists. Under these statutes, where no such alternative route is available, the Secretary may only approve construction through parks if the plans are designed to minimize harm to the park. The Secretary did not include his factual findings in the announcements regarding approval of the highway’s route and design.

On April 17, 2015, the EPA promulgated a final rule that establishes minimum national criteria under subtitle D of the Resource Conservation and Recovery Act (RCRA) for Coal Combustion Residuals (CCR) landfills and surface impoundments at active coal fired power plants. The rule regulates surface impoundments and landfills that are actively accruing CCR, inactive surface impoundments still containing CCRs, and water both at operating power plants actively burning coal and those that burned coal in the past but have transitioned to use of an alternate fuel source. The requirements of the rule included: location restrictions (floodplains, wetlands, unstable areas, etc.); design criteria (liners, structural integrity criteria); operating criteria (e.g., run-on and runoff controls, inspections, fugitive dust controls); groundwater monitoring and corrective action; closure and postclosure care (e.g., final cover systems, 30 years of groundwater monitoring); and recordkeeping. At the time the final CCR rule was issued under subtitle D of RCRA, the EPA did not have the authority to enforce these criteria nor was the EPA authorized to approve state permit programs, as is the case for municipal solid waste landfills. Instead, the requirements of the CCR rule are directly applicable to owner/operators of facilities where disposal units are located and can be enforced via citizen suit or under the "imminent and substantial danger" authority of RCRA section 7002. Owner/operators are required under the rule to place notifications in their operating record, on their Web site, and in some instances provide notice to the directors of appropriate State agencies documenting the measures taken to comply with the rule. The 2015 CCR Rule does not make a final Bevill regulatory determination as to whether CCRs warrant regulation as a hazardous waste under subtitle C of RCRA, but instead defers a final regulatory determination until the EPA has more information on specific matters influencing the risks posed by CCRs. Subsequent to the promulgation of the 2015 CCR Rule, various environmental and industry groups submitted to the D.C. Circuit seven separate petitions for review, which were consolidated into a single action. On June 16, 2016, in response to the EPA's unopposed motion for voluntary remand of certain issues, the D.C. Circuit issued an order remanding with vacatur to the EPA specific provisions of the rule for further consideration, and remanding without vacatur other issues. The EPA will consider the provisions remanded by the D.C. Circuit, as well as the issues raised in the 2017 petition and other implementation issues subsequently raised by stakeholders.

EPA was running good for sometimes but after sometimes it faces many problems and falling down day by day. Communities across the country sued the Environmental Protection Agency for failing to investigate their civil rights complaints for more than a decade. The complaints involve discrimination by the states in granting permits that subject already overburdened low-income communities of color to more big-polluting facilities. This is also a big point to fail this act.

EPA accepted the complaints which are on permits for two gas-fired power plants in Pittsburg, Calif., a landfill in Tallassee, Ala., a hazardous waste facility in Chaves County, N.M., a wood-incinerator power station in Flint, Mich., and an oil-refinery expansion along the Texas Gulf Coast. These permits are for facilities in predominantly low-income African-American or Latino neighborhoods.

EPA’s delay allows these neighborhoods to continue to be harmed by the permits long after they were issued. Many of these facilities have already been built and are now on EPA’s “Significant Violators List” for their high levels of toxic pollutants. Some are paying hefty fines for Clean Air Act violations.