EPA’s Regional Haze Program requires states to develop and implement air quality protection plans (so-called State Implementation Plans, or “SIPS”) to reduce the pollution that causes visibility impairment in the nations national parks and wilderness areas. (Click here to see a map showing the 156 protected “Class I” visibility areas in the U.S.) A key component of the Regional Haze Rule is the requirement to install and operate the best available retrofit technology (BART) for qualifying older, existing sources of visibility impairing pollutants. Minnesota–and Minnesota’s taconite industry in particular–has had its share of woes recently trying to implement the Regional Haze Rule (see below). So perhaps there is some small measure of comfort knowing that  other states share our BART Blues. North Dakota, for example, whose squabble with EPA over regional haze recently ended up in the Eighth Circuit Court of Appeals.

The Eighth Circuit, on September 23, 2013, largely upheld EPA’s partial disapproval of two SIPs submitted by North Dakota under the Regional Haze Rule as well as EPA’s federal implementation plan (FIP) addressing the disapproved portions of the SIPs. North Dakota v. U.S. E.P.A., — F.3d —-, 2013 WL 5302700 (8th Cir, 2013). However, the Court vacated and remanded EPA’s BART determination for one large power plant in North Dakota, determining that the agency’s refusal to consider existing pollution control technology at the plant because it had been voluntarily installed was arbitrary and capricious. The Court denied the remainder of the petitions for review, including a claim by North Dakota that the FIP should be vacated because EPA had promulgated it simultaneously with the final rule disapproving the SIPs.

In a related story, EPA, on September 30, 2013, issued a final rule disapproving in part the Michigan and Minnesota regional haze SIPs for failure to mandate BART for taconite facilities in both states, including six taconite plants in Minnesota. 78 Fed. Reg. 59825 (Sept. 30, 2013). EPA approved most of Minnesota’s SIP on June 12, 2012 (77 Fed Reg. 34801) but deferred action on BART for the taconite facilities.  On February 6, 2013 (78 Fed. Reg. 8706), EPA published a final rule establishing a FIP to implement BART for the Minnesota and Michigan taconite facilities. On the same day, EPA supplemented its proposed partial disapproval of the states’ SIPs for BART, necessitating an additional comment period that culminated in the September 30, 2013, final rule.

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