Arkansas Court of Appeals throws out Nucor appeal in Big River Steel case

The Arkansas Pollution Control and Ecology Commission was correct in granting a permit for a $1.3 billion steel mill in Mississippi County, the Arkansas Court of Appeals ruled Wednesday (Dec. 9).

In the 25-page opinion from Judge Kenneth Hixson, the court affirmed the decision by the commission to grant the permit for Big River Steel.

“In this environmental-law case, the Arkansas Department of Environmental Quality issued a permit allowing appellee Big River Steel, LLC to build and Operate a new steel mill in Mississippi County, Arkansas. Appellants Nucor Steel-Arkansas and Nucor-Yamato Steel Company, who also own steel mills in Mississippi County, opposed the permit and appealed ADEQ’s decision to the Arkansas Pollution Control and Ecology Commission. PC&E affirmed the permit, and Nucor sought judicial review in the Mississippi County Circuit Court. That court, upon a motion by BRS, transferred the case to the Arkansas Court of Appeals,” Hixson said in the ruling. The operative decision before us is the administrative ruling of PC&E, and we affirm PC&E’s decision.”

The case was first sent to Mississippi County Circuit Court and was later appealed to the appeals court.

According to the opinion, the permit was granted under the federal Clean Air Act.

“In January 2013, BRS filed a PSD application with ADEQ to construct and operate a new steel mill near Osceola in Mississippi County. The application stated that the mill would produce up to 3.4 million short tons per year of rolled steel products and would employ two electric arc furnaces and various other components, some of which would be natural-gas fired. Subsequent to its initial application, BRS submitted revised applications in March and June 2013 and asked that its application be processed in “an accelerated timely manner,” Hixson wrote.

“As required by law, BRS’s application included an air-quality analysis, the purpose of which was to demonstrate that the new mill would not have an adverse impact on air quality in the region. Because the mill had not yet been constructed, BRS could only estimate the types and concentrations of pollutants that would be discharged once the mill was operational. To properly estimate the concentration of air pollutants, BRS employed a technique referred to as air-dispersion modeling. Modeling is a complex process that, among other things, uses computer inputs to predict the future emissions of a planned industrial facility. The modeling results, when added to the existing emissions from other nearby plants, yield the concentration of pollutants that will be released into the region’s ambient air by industrial means.”

Hixson also said in the ruling that courts are loathe to challenge administrative rules due to agencies working on the issue on a daily basis.

“It is not our role in an administrative appeal to conduct a de novo review of the record. Rather, we review administrative appeals with great deference to the agency’s expertise, based on our recognition that such agencies are better equipped by specialization, insight through experience, and more flexible procedures to determine and analyze legal issues affecting them,” Hixson said. “Agency decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. On appeal, we give the evidence its strongest probative force in favor of the agency’s findings. Even where issues of law are concerned, we often accord deference to the agency’s ruling, particularly when reviewing the agency’s interpretation of statutes or its own rules and regulations.”

Joining Hixson in the opinion were Judges Raymond Abramson and Larry Vaught.