Haze plan by August, U. S. judge tells EPA
State rejected in bid to toss suit
A federal judge ordered the U. S. Environmental Protection Agency on Tuesday to submit by Aug. 31 a plan for implementing a 1999 haze rule in Arkansas.
U. S. District Judge Leon Holmes additionally denied a motion from Arkansas Attorney General Leslie Rutledge’s office that sought to have a lawsuit over the haze rule dismissed for a lack of standing by the Sierra Club, which sued the EPA in 2014 over not issuing a plan for Arkansas.
The order resolves much of the debate regarding the lawsuit that spurred an earlier proposed federal implementation plan that carried a projected compliance cost of up to nearly $ 2 billion for businesses.
That plan also prompted Entergy Arkansas to propose the closure of one of the two largest coal plants in the state by 2028 in favor of alternative sources such as natural gas, solar and wind energy. That proposal remains on the table for EPA’s consideration in developing a final state plan.
“We needed the deadline to be sealed up by the courts,” Sierra Club of Arkansas Director Glen Hooks said. “We wanted it earlier but … we’re happy to get it, and we’re certainly happy we didn’t get thrown out of the case because that would have been ridiculous.”
The EPA is now working with the Arkansas Department of Environmental Quality on a new state plan to implement the regional haze rule in the state. The deadline for the first phase of compliance with the Regional Haze Rule is 2018.
“While additional time may be needed,” department Director Becky Keogh said in a statement to the Arkansas Democrat- Gazette, “this time provided by the judge should be helpful toward this goal.
“The final regional haze
plan for Arkansas will be integral for future compliance decisions for the Clean Power rule and other federal air rules.”
The Clean Power Plan was issued Aug. 3 and seeks to curb carbon dioxide emissions at existing coal plants by 2030, with interim goals met by 2022. In Arkansas, that will be a reduction of 36 percent. Officials have begun a stakeholder process to determine exactly how that reduction will be achieved.
The Arkansas Department of Environmental Quality has asked the EPA to consider its five- year progress report, which shows steady improvement and the achievement of visibility goals by 2018.
Planning for the second phase of the Regional Haze Rule would begin in 2018, and stricter visibility goals would come five years later.
Keogh has said some emissions controls will still be sought in the new state plan.
Congress passed the Regional Haze Rule in 1999 as part of the Clean Air Act. Its focus is on visibility in national wilderness areas across the nation, the compounds that contribute to haze — sulfur dioxide and nitrogen oxide, and the facilities that emit those compounds — often coal- fired power- generating plants.
The Arkansas Department of Environmental Quality is in charge of improving and monitoring visibility in Caney Creek and Upper Buffalo wilderness areas in Arkansas and Hercules- Glades Wilderness area and Mingo National Wildlife Refuge in Missouri.
In August, Rutledge’s office motioned to have the lawsuit dismissed for a lack of standing from the Sierra Club.
The Sierra Club countered by arguing that its extensive membership in Arkansas gives its members standing in the case.
In his order, Holmes argued that the group had standing because it could prove “injury in fact.”
“The State of Arkansas argues that no injury exists based upon its own assessment that visibility in Class I federal areas is improving,” Holmes wrote. “However, the injury in this case occurred when the EPA failed to comply with the Clean Air Act’s requirement that it promulgate a federal implementation plan for Arkansas under 42 U.S. C .§7410.”
Additionally, Holmes granted the EPA’s proposed deadline of Aug. 31 after determining that the agency’s arguments that its limited resources prevented earlier issuance of a final plan were supported in court documents.
Holmes’ Tuesday order says the EPA must sign a “final notice of rulemaking” by that deadline in which it proposes the approval of a revised state plan for implementing the haze rule; a proposed federal implementation plan; or partial approval of a revised state implementation plan and proposed partial federal implementation plan that would address deficiencies in Arkansas’ 2012 regional haze state implementation plan.
In 2012, the EPA partially rejected the state’s proposal for implementing the Regional Haze Rule, taking issue with the process that would be used to determine emission controls at power plants.
The state never resubmitted that plan, and the EPA didn’t submit a federal plan.
In 2014, the Sierra Club sued the EPA, alleging that the EPA had neglected its duties in not carrying out the 1999 law. The group argued that, by law, the agency was required to submit a new plan within two years of a rejecting the state plan.
Eventually, the Sierra Club and the EPA tentatively agreed to have a final plan in place by Dec. 15. But after submitting the draft plan in March, the EPA proposed extending that deadline to work with the Arkansas Department of Environmental Quality.
The EPA argued in court filings that it couldn’t issue a plan earlier than Aug. 31 because of limited resources as the agency’s regional office is also drafting a haze plan for Texas.
The EPA’s proposed federal implementation plan, submitted earlier this year, is similar to the state- submitted plan. But a big difference between them is that the federal plan includes a call for emissions reductions at Entergy Arkansas’ 1,700- megawatt Independence coal- fired power plant near Newark.
By Entergy’s estimate, the federal plan’s proposed emission controls for that plant would cost more than $ 1 billion to carry out. That’s the same as what it would cost to retrofit the 1,700- megawatt
White Bluff coal- fired plant near Redfield, which was part of the original state plan.
The Independence and White Bluff plants are the only coal- fired plants in the state that lack significant emissions- controlling scrubbers.
The EPA disputes Entergy’s cost estimate, arguing the real cost would be much lower.
But several companies have argued that the EPA’s estimates on the cost of compliance under the federal proposal are lower than actual costs because of the method the agency uses to calculate them.
Keogh said the Department of Environmental Quality opposes including the Independence plant in any final haze rule proposal. She said emission controls for other plants could be included, just as they have been in previous state implementation proposals.
Several other power- generating facilities are included in the federal implementation plan, including ones owned by Southwestern Electric Power Co., the Arkansas Electric Cooperatives Corp. and Domtar Corp.
Domtar, a paper- production company, has asked to have its 2018 compliance deadline pushed back to accommodate changes it is making in its pulp- production process.
Environmental groups have been encouraged by the federal proposal, citing its visibility improvements and its potential to improve public health. While the rule targets only visibility at national wilderness areas, nitrogen oxide and sulfur dioxide emissions have been associated with respiratory illnesses, hospitalizations and deaths.
When Caney Creek and the Upper Buffalo River last were measured for haze, they came in at 26.36 deciviews and 26.27 deciviews, respectively. A deciview is a measure of visibility meant to represent the minimal perceptible change visible to the human eye.
The EPA goal is to reduce haze to 11.58 deciviews for Caney Creek and 11.57 deciviews for the Upper Buffalo by 2064 by reducing sulfur dioxide and nitrogen oxide levels.