Summary 2010 WY 25

Summary of Decision issued March 5, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Powder River Basin Resource Council v. Wyo. DEQ

Citation: 2010 WY 25

Docket Number: S-09-0037

Rule 12.09(b) Certification from the District court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Powder River Basin Resource Council and Sierra Club: James S. Angell and Robin Cooley of Earthjustice, Denver, CO.

Representing Appellee Wyo. DEQ: Bruce A. Salzburg, Attorney General; Jay A. Jerde, Deputy Attorney General; Nancy E. Vehr, Senior Assistant Attorney General; Lucas J. Esch, Assistant Attorney General.

Representing Appellee Basin Electric Power Coop. Inc.: Patrick R. Day and Mark R. Ruppert of Holland & Hart LLP, Cheyenne, WY.

Representing Amicus Curiae Northern Cheyenne Tribe: John C. Schumacher, Riverton, WY; Brian C. Gruber of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA.

Facts/Discussion: The DEQ issued an air quality permit to Basin Electric for a new coal-fired electric power plant, called Dry Fork Station, to be built in the Powder River Basin. The Powder River Basin Resource Council and the Sierra Club (PRBRC) challenged the air quality permit before the Wyoming Environmental Quality Council (Council). After hearings on the PRBRC’s different claims, the Council upheld the DEQ’s issuance of the permit. The PRBRC appealed to the district court which certified directly to the Court. The Northern Cheyenne Tribe was granted leave to file an amicus curiae brief.
The DEQ administers and enforces the Wyoming Environmental Quality Act. The Act is responsible for the air quality program and operates under Wyoming Air Quality Standards and Regulations. The Court defers to an agency’s interpretation of its own rules and regulations unless that interpretation is clearly erroneous or inconsistent with the plain language of the rules.

Increment protection: The PRBRC contends that because the second computer model run indicated exceedances of the increment, the DEQ could not legally issue the air quality permit for the Dry Fork Station. The DEQ and Basin Electric point out that in the second run using maximum actual emissions, Dry Fork’s contributions to the increment exceedances were so exceedingly small that the DEQ treated them as non-existent. DEQ and Basin Electric assert the agency had discretion to determine that Dry Fork would not cause or contribute to any actual exceedances of the increment. The PRBRC’s position was based on the language of the regulation. DEQ stated it was allowed a certain amount of flexibility in administering the air quality program and that it properly exercised its discretion to overlook the modeled increment exceedances because Dry Fork’s contributions were well below the Significant Impact Levels. The Court disagreed with the Council’s conclusion that the DEQ properly used Significant Impact Levels to determine that the Dry Fork Station would not cause or contribute to increment exceedances on the Reservation but affirmed on another basis. The regulation provides that the permit shall be issued only if the predicted impact is less than the increment. In applying its experience and scientific reason, the DEQ exercised its discretion to make a sound prediction of whether the impact of emissions from a proposed source would be less than the increment. Using the computer model as a tool to make predictions, the DEQ essentially decided that the predicted impacts of emissions from the Dry Fork Station would be less than the maximum allowable increment.
BACT – Control technology versus redesign: The Court agreed that BACT analysis did not have to include options that would require the proposed source to redefine its basic design. The record contained substantial evidence to support the Council’s findings that imposing supercritical boiler technology on the Dry Fork Station would require extensive changes to its basic design. These determinations lead to the conclusion that the DEQ was not required by the BACT regulations to consider supercritical boiler technology as an alternative to Basin Electric’s proposed subcritical boiler technology.
Greenhouse gas emissions: The Dry Fork Station is predicted to emit 3.7 million tons per year of carbon dioxide along with lesser amounts of other gases that the PRBRC characterizes as greenhouse gases. The PRBRC asserted that the DEQ was required to impose BACT requirements forcing Dry Fork to control its emotions of carbon dioxide. PRBRC maintains that carbon dioxide is subject to BACT analysis and control because it is subject to regulation under the federal Clean Air Act. The Court considered the issue solely under federal law. There are no limits, standards or control requirements for carbon dioxide. The EPA requires only monitoring and reporting for carbon dioxide emissions. In Deseret, the EPA stated that it had historically interpreted the term “subject to regulation” to include only those air pollutants subject to statutory or regulatory emissions controls, not pollutants such as carbon dioxide that are subject only to monitoring and reporting requirements. The Deseret decision established only that carbon dioxide is potentially subject to regulation at some future time. Shortly after Deseret was published, the EPA issued a memo reaffirming its historical interpretation that the term “subject to regulation” includes those pollutants for which a statute or regulation requires actual control of emissions of that pollutant. While PRBRC made a persuasive argument that carbon dioxide may be regulated in the future, it has not shown that it was subject to regulation when the Dry Fork permit was pending. The Court agreed with the DEQ and Basin Electric that the DEQ was not required to subject the Dry Fork Station’s carbon dioxide emissions to BACT analysis and control.

Conclusion: The Court affirmed the Council’s decision that the DEQ properly issued an air quality permit to Basin Electric for Dry Fork Station.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ybks56m .

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