Utah Chapter Of The Sierra Club v. Air Quality Bd.

226 P.3d 719

2009 UT 76

UTAH CHAPTER OF the SIERRA CLUB, a non-profit organization, Petitioner,v.AIR QUALITY BOARD, an agency of the State of Utah; and Division of Air Quality, an agency of the State of Utah, Respondents.

No. 20080113.

Supreme Court of Utah.

Dec. 4, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John Pace, Joro Walker, Salt Lake City, for petitioner.

Mark L. Shurtleff, Att'y Gen., Fred G. Nelson, Paul McConkie, Christian C. Stephens, Asst. Att'ys Gen., Salt Lake City, for respondents.

Michael G. Jenkins, Martin K. Banks, Salt Lake City, for intervenors.

Fred W. Finlinson, Saratoga Springs, Brian W. Burnett, James D. Gilson, Salt Lake City, for Sevier Power Company.

Joel Ban, Salt Lake City, for amicus Utah Physicians for a Healthy Environment.

DURHAM, Chief Justice:

INTRODUCTION

¶ 1 In 2004, the Utah Division of Air Quality granted Sevier Power Company (the Power Company) an approval order to construct a coal-fired, circulating fluidized bed power plant. Sierra Club appeals the decision of the Utah Air Quality Board (the Board) denying its Request for Agency Action, which challenged the approval order for failing to comply with both federal statutes and the Utah State Implementation Plan's requirements for the prevention of significant deterioration (PSD) of air quality. We reverse in part, and affirm in part the Board's decision.

BACKGROUND

¶ 2 The Clean Air Act, codified at 42 U.S.C. §§ 7401 to 7515, aims to “protect and enhance the quality of the Nation's air resources” by prescribing national ambient air quality standards, which state and regional authorities are required to either maintain or progress toward. 42 U.S.C. § 7401 (2006). Each state enforces both the federal air quality requirements, and their own air quality requirements, via a state implementation plan.¹

¶ 3 Critical to the maintenance of the national air quality standards is the prevention of significant deterioration (PSD) program. Areas that meet the national standards are considered to be in attainment. This status is maintained by, among other things, requiring the owner or operator of a “new major source” to apply for a new source permit. An application for a new source permit must show that the owner will construct the facility in a manner that applies the best available pollution control technology for regulated pollutants and complies with the PSD program's limitations on pollution increases. In Utah, the new source review permit, also called the PSD permit, is part of the approval order process. See Utah Admin. Code r. 307-401 (2004).

¶ 4 All PSD programs, whether federal or state, require a new source to undergo a best available control technology (BACT) review. This review is often conducted using the five-step “top-down method,” which in essence requires the applicant to adopt the most stringent control technology, unless it can show that the technology is not achievable due to energy, environmental, or fiscal impacts.² EPA New Source Review Workshop Manual: Prevention of Significant Deterioration and Nonattainment Area Permitting B.2 (1990), http:// www. epa. gov/ region 07/ programs/ artd/ air/ hsr/ hsrmemos/ 1990 wman. pdf. Once the BACT is selected for a new facility, an emission limitation based on that control technology is also imposed as part of BACT.

¶ 5 In addition to the BACT analysis, a new source seeking a PSD permit must also complete an air quality analysis. The purpose of this analysis is to ensure that the emissions from the proposed facility, in conjunction with the emissions from other sources, will not cause or contribute to a violation of the national ambient air quality standards or the PSD increment limits. The national air standards place a ceiling on the total concentration of certain pollutants in the atmosphere. The PSD increments, on the other hand, place a limitation on the amount a source may increase the concentration of a pollutant over the baseline. The amount of increase allowed varies based on the location of the proposed source. Locations are divided into three categories. Class I allows the smallest increase in pollution levels and typically covers state and national parks and other wilderness and recreation areas. Class II allows a moderate increase and applies to areas considered normal growth areas. Class III areas can have the largest increment and are areas where the state or local authority foresees a greater amount of industrial development.

PROCEDURAL HISTORY

¶ 6 On October 12, 2004, Richard W. Sprott, executive secretary (the Secretary) for the Utah Air Quality Board and director of the Division of Air Quality (the Division) ³ issued an approval order to the Power Company to build a coal-fired, circulating fluidized bed power plant. The approval order indicated that the Division found the proposal for the new electric power facility to comply with the Utah State Implementation Plan and authorized the Power Company to begin construction so long as the conditions of the approval order were met. The conditions itemized in the approval order included a requirement that the Power Company, in writing, notify the Secretary of the status of the facility's construction or installation if it had not been completed within eighteen months of the date of the approval order, October 12, 2004. “At that time, the Executive Secretary shall require documentation of the continuous construction and/or installation of the operation and may revoke the AO [approval order] in accordance with R307-401-11.” Approval Order, DAQE-AN2529001-04, at *5, ¶ 9 (Oct. 12, 2004).

¶ 7 The Sierra Club challenged the approval order by submitting a Request for Agency Action. In its Request for Agency Action, the Sierra Club argued that the Board's approval order was invalid because it failed to comply with the Clean Air Act, the Utah Air Conservation Act, and various provisions of the Utah Administrative Code enforcing the federal and state Acts. Among the numerous grounds for challenging the approval order, relevant to this appeal the Sierra Club argued (1) that the Division failed to evaluate the emission of carbon dioxide and other greenhouse gases in its BACT analysis, (2) that the Division improperly excluded integrated gasification combined cycle technology as an available control technology, (3) that the emission limits set as part of the BACT review were in error, (4) that the Division wrongfully adopted a significant impact levels policy for determining the cumulative impact of a new source on Class I areas, and (5) that the Division failed to adequately complete a Class I increment analysis for sulfur dioxide.

¶ 8 The Board challenged the Sierra Club's standing, but lost on appeal to this court. See Utah Chapter of the Sierra Club v. Utah Air Quality Bd., 2006 UT 73, ¶ 11, 148 P.3d 975. PacifiCorp was then allowed to intervene on two issues-whether a BACT evaluation was required for carbon dioxide and other greenhouse gases and whether integrated gasification combined cycle technology was properly excluded from the BACT evaluation.

¶ 9 The Sierra Club then amended its complaint to include a claim that, in issuing the approval order, the Division failed to follow federal procedures for the invalidation or extension of a PSD permit.⁴ The Sierra Club moved for summary judgment on this issue. The Board denied this motion and instructed the Secretary to formalize in writing the Division's decision regarding the Power Company's request for an extension.

¶ 10 The Power Company, PacifiCorp, and the Division also filed motions for judgment on the pleadings asking the Board to dismiss the Sierra Club's claims that the Division did not properly administer the BACT review as a matter of law. The Board granted the motion for judgment on the pleadings as to the evaluation of carbon dioxide emissions, noting that neither the EPA nor the Utah Air Quality Board had promulgated rules for limiting or otherwise controlling the emission of greenhouse gases. The Board, however, denied summary judgment on the consideration of integrated gas combined cycle technology as part of the BACT evaluation because the Board determined that the issue presented contested factual issues that would require an evidentiary hearing.

¶ 11 The Board then held three days of hearings to address the integrated gas combined cycle technology issue, as well as the Sierra Club's remaining challenges. In a written order, the Board denied all of the Sierra Club's challenges and approved the granting of the approval order. Specifically, the Board held as follows:

(1) A BACT review is only required for pollutants that are regulated, not pollutants that could be regulated; carbon dioxide and other greenhouse gases are not currently regulated.

(2) The Division did not err by excluding integrated gas combustion cycle technology from the BACT analysis because adopting the process would redefine the design of the power plant. Additionally, the Board found that the technology was still in development and, therefore, was not available.

(3) The Division did not err in accepting selective noncatalytic reduction and an emission limitation of 0.1 lb/MMBtu on a twenty-four-hour basis as the BACT for sulfur dioxide because other control technologies were not feasible and a lower emission limitation had not been demonstrated for a similar plant.

(4) The Division did not err in adopting the significant impact levels as a screening method for whether the Class I increment would be violated. No rulemaking was required because this is a technical tool for making a PSD determination.

(5) The Division did not err in allowing the exclusion of IPP Unit 3 and Hunter 1 from the Power Company's cumulative analysis for the Class I increment. Additionally, the use of long-term averages for modeling did not violate the state's rules for PSD.

(6) The Division did not err by not requiring a new BACT analysis when construction on the proposed facility did not begin

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