Summary 2011 WY 42

Summary of Decision March 9, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Sierra Club v. Wyo. Dep’t of Envtl. Quality

Citation: 2011 WY 42

Docket Number: S-10-0105

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461805

W.R.A.P. 12.09(b) Certification from the District Court of Laramie County, The Honorable Peter G. Arnold, Judge

Representing Appellant (Petitioner): Gay George, George Law, PC, Cheyenne, Wyoming; Andrea Issod, Sierra Club, San Francisco, California. Argument by Ms. Issod.

Representing Appellees (Respondents): Bruce A. Salzburg, Attorney General; Jay Jerde, Deputy Attorney General; Nancy Vehr, Senior Assistant Attorney General; John Coppede, Hickey & Evans, LLP, Cheyenne, Wyoming; Mary Throne, Throne Law Office, Cheyenne, Wyoming. Argument by Ms. Vehr and Ms. Throne.

Date of Decision: March 9, 2011

Facts: Appellee DEQ issued an air quality permit to Appellee Medicine Bow, authorizing the construction of a facility that will gasify and liquefy coal, and of an associated underground coal mine. DEQ determined that the proposed facility’s PTE for sulfur dioxide is approximately 37 tons per year. Appellant claimed that the facility’s PTE should be much larger, arguing that the DEQ improperly excluded emissions that will occur during malfunctions of the facility, and emissions resulting from “cold starts,” which are necessary after the facility has been shut down long enough that the equipment has cooled to ambient air temperature. Appellant appealed the issuance of that permit to the Wyoming Environmental Quality Council (Council), which upheld the DEQ’s decision. Appellant appealed the Council’s decision to the district court, which certified the appeal directly to this Court pursuant to W.R.A.P. 12.09(b).

Issues: (1) Whether the air permit for the coal to liquids plant fails to consider significant sulfur dioxide emissions from flares in determining the Potential to Emit and fails to apply the Best Available Control Technology (BACT) to limit the flare emissions; (2) Whether the permit fails to consider fine particulate matter (PM2.5) emissions; (3) Whether DEQ failed to include fugitive particulate emissions in its model to demonstrate compliance with 24-hour air quality standards.

Holdings: The Court concluded that DEQ’s decision to exclude emissions from malfunctions and cold starts from the PTE was not contrary to applicable Wyoming statutes and regulations. Appellant did not demonstrate that it was inconsistent with federal authority or EPA guidance. The Council did not err in upholding DEQ’s decision. As to the second part of the sulfur dioxide issue, the Court observed that the Council was not limited to the record compiled by DEQ prior to issuing the permit. The Court’s review of the record on appeal indicated that DEQ supported its motion for summary judgment. The Court further concluded that the Council did not err in ruling against Appellant and upholding DEQ’s decision.

As to the particulate matter issue, when the appellees moved for summary judgment against the appellant on this issue, they argued as a matter of law that no permit-specific reasonableness determination was required, but even if it were, as a matter of fact the use of the surrogate was reasonable. The Council ruled as a matter of law that the Trimble decision did require a permit-specific reasonableness determination, but that there were no genuine issues of fact that DEQ had made such a determination. The Court, on the other hand, concluded that the Trimble decision does not apply retroactively, so that no permit-specific reasonableness determination was required in Appellees’ case. Although the Court reached their conclusion on a basis different from the Council’s, the Court concluded that the Council did not err when it rejected Appellant’s fine particulate matter claim and upheld DEQ’s issuance of the air quality permit.

As to the fugitive particulate emissions issue, the Court agreed that in granting summary judgment to Appellees, the Council determined that DEQ’s long-standing practice of not requiring modeling of fugitive particulate emissions to demonstrate compliance with the 24-hour standards is consistent with controlling law, and that Appellant failed to show that DEQ’s actions were contrary to the law or applicable DEQ rules and regulations. The Court concluded that the Council did not err in rejecting the appellant’s fugitive particulate emissions claim.

The Court affirmed the Council’s grant of summary judgment in favor of Appellees.

J. Burke delivered the opinion for the court.

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 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]