Sierra Club Asks Federal Court For Summary Judgment Against EPA On Haze Rules

The Sierra Club filed a motion for summary judgment Tuesday (Sept. 8) in U.S. District Court alleging the U.S. Environmental Protection Agency neglected its duties to create and finalize a plan to reduce regional haze in the state’s wilderness areas.

The court filing in the U.S. District Court for Eastern District of Arkansas said both Arkansas regulatory officials and the EPA have violated their duties to submit a so-called regional haze state implementation plan (SIP) within the required timetable under the federal Clean Air Act.

“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,” Glen Hooks, director of the Sierra Club’s Arkansas Chapter, said in a 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.”

According to the 24-page court filing, Arkansas regulatory officials missed the original 2007 deadline for submitting a haze plan to EPA, and did not file a SIP until four years later in September 2011. The EPA then rejected significant portions of that plan in March 2012 that didn’t comply with the Clean Air Act, but has not issued a federal counterproposal within the two-year deadline required by the nation’s clear air rules.

In the court filing, Sierra Club officials argue that the EPA was obligated to issue a federal plan within two years of disapproving the state SIP. “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,” Sierra Club attorney Richard Mays of Heber Springs states in the federal court filing.

Instead of submitting a final plan in early spring as suggested by the Sierra Club, EPA representatives from the federal agency’s regional office in Dallas did come to the state on April 16 to hear comments from Arkansans on the pros and cons of the federal agency’s proposed rules to clean up haze in the state’s national parks and wilderness areas.

The EPA also published proposed guidelines in the Federal Register on April 8 that rejected a portion of the Arkansas Department of Environment Quality’s (ADEQ) haze plan, called Best Available Retrofit Technology, or BART.

The EPA said the state plan should have made “reasonable progress” toward protecting the Arkansas Buffalo National River, Ouachita National Forest and Caney Creek wilderness area from haze and the harmful effects of pollution. The proposed guidelines also address “downwind” haze problems from Arkansas power plants and factories that cross state lines.

Under the BART plan, ADEQ proposed retrofitting nine units and six mills and power plants across the state to meet the EPA requirements to reduce 71,500 tons a year of sulfur dioxide emissions and up to 15,000 tons of nitrogen oxide annually. The EPA’s 360-page FIP proposal relied heavily on the state’s BART evaluations, but goes several steps further by establishing goals, deadlines and long-term strategies that meet the EPA’s “reasonable progress” mandate.

In early August, Entergy Arkansas Inc. proposed what it called “a more reasonable, long-term, multi-unit approach to address Arkansas’ regional haze” in response to the federal EPA’s rejection of the state’s earlier plan to improve visibility in wilderness areas.

Entergy’s proposal to the EPA calls for the eventual shutdown of its coal-fired operations at the White Bluff Electric Station in Jefferson County, instead of a more costly plan to install scrubbers atop the smokestacks of the sprawling power plant near Redfield by 2021.

According to Entergy Arkansas CEO Hugh McDonald, the proposed haze controls for the White Bluff power plant do not warrant an investment of more than $2 billion in scrubber technology at the plants. Under the Entergy Plan, he said the utility would cease all coal-fired operations at the two coal-fired units in 2027 and 2028.

Entergy also makes the case that scrubbers are not necessary for the utility’s Independence Steam Electric Station in Independence County because the state had already made “reasonable progress” toward better visibility conditions that the EPA had previously approved.

“Based on the negligible visibility benefit from installing scrubbers at Independence, the cost of the controls is an astounding $1.33 billion to $1.53 billion per … improvement,” Entergy said in its 57-page filing. “Scrubbers at Independence are simply not necessary to ensure that visibility in Arkansas’ Class I areas remains below the (glide path), nor are they justifiable based on EPA’s own analysis of the visibility benefits resulting from such a huge investment.”

On Monday, Entergy Arkansas officials refused to respond to “pending litigation” in reference to the Sierra Club’s lawsuit. Also, EPA and ADEQ officials did not immediately respond to request for comments from Talk Business & Politics.

However, Attorney General Leslie Rutledge, who has been involved in an ongoing back-and-forth with the Sierra Club on environmental matters since taking office in January, said her office was still reviewing the Sierra Club’s motion “and will be responding appropriately.”

In July, the AG’s office filed comments with the EPA, saying federal regulators acted in an arbitrary and capricious manner in its decision to require billions of dollars in compliance costs for very limited improvement in visibility.

“I am urging the EPA to carefully consider the comments that have been submitted,” Rutledge said. “This Federal Implementation Plan is a prime example of an overreaching federal regulation in a state in which recent data shows that visibility is improving. A plan crafted by Arkansas officials considering Arkansas’s best interests would serve the state much better.”

AG spokesman Judd Deere kept the door open for possible litigation following the Sierra Club’s court filing late Tuesday afternoon. “Attorney General Rutledge is prepared to fully litigate this case to protect Arkansas utility ratepayers from increased costs,” he said.