Phoenix, AZ


Region 9 Updates

Nov 27, 2017

A. EAB Decisions
On June 20, 2017, the Environmental Appeals Board dismissed for lack of jurisdiction a petition to review a modification to Delta Energy Center’s permit under the Prevention of Significant Deterioration program.  In Re: Delta Energy Ctr., PSD Appeal 17-01, 2017 WL 2726844, at *1 (E.P.A. June 20, 2017). Delta operates a combined cycle gas-fired power plant in Pittsburg, California. Id. The Bay Area Air Quality Management District (“BAAQMD”) issued the PSD permit to Delta in 1999 as a federal permit under delegated authority from the EPA. Id. After a fire at the plant, Delta petitioned the California Energy Commission to amend its license to allow it to make temporary modifications to the plant’s steam turbine so necessary repairs could be made while the plant operated in simple cycle mode. Id. at *3. The request was approved. Id.

Petitioners challenged the action, arguing that the approval illegally modified Delta’s PSD permit and that BAAQMD failed to participate in the amendment process. Id. After reviewing the statutory and regulatory history, the EAB concluded that, as of August 31, 2016, BAAQMD obtained authority to administer its own PSD program, which transferred to BAAQMD responsibility for all relevant PSD permits, including the Delta PSD permit. Id. at *5-6. The Board concluded that it “lacks jurisdiction under 40 C.F.R. part 124 to adjudicate challenges to a PSD permit, or permit modification, when an agency such as BAAQMD has obtained EPA approval to administer the PSD program.” Id. at *6.

B. Enforcement Issues

On May 4, 2017, EPA Region 9 announced settlement with three trucking companies for violating California’s Truck and Bus Regulation. See News Release, U.S. EPA settles with three trucking companies over California diesel rule (May 4, 2017). To comply with this rule, trucking companies must upgrade their vehicles to meet specific NOx and particulate matter performance standards, and verify that vehicles they hire or dispatch are also in compliance. While some companies failed to install particulate filters on their own heavy-duty diesel trucks, others failed to verify that trucks they hired for use in California had complied with the state rule.  The settlement required three companies to pay a total of $201,000.

The Environmental Protection Agency has taken final action on the following State Implementation Plans:

• California
o On June 12, 2017, EPA approved revisions to the California SIP to achieve attainment of the 1997 8-hour ozone NAAQS in the Coachella Valley nonattainment area. The Coachella Valley is classified as Severe-15 and must achieve attainment no later than June 15, 2019. EPA approved the reasonably available control measures, transportation control strategies and measures, rate of progress and reasonable further progress demonstrations, attainment demonstration, and vehicle miles traveled offset demonstration. Approval and Promulgation of Implementation Plans; State of California; Coachella Valley; Attainment Plan for 1997 8-Hour Ozone Standards, 82 Fed. Reg. 26854 (Jun. 12, 2017).
o On June 23, 2017, EPA approved revisions to the California SIP applicable to the Western Mojave Desert ozone nonattainment area. In this action, EPA approved the initial six-year 15 percent rate of progress determination for the 1997 8-hour ozone NAAQS. Approval of California Air Plan Revisions, Western Mojave Desert, Rate of Progress Demonstration, 82 Fed. Reg. 28560 (Jun. 23, 2017).
o On July 3, 2017, EPA approved revisions to four permitting rules of the Mendocino County Air Quality Management District portion of the California SIP. The revisions include changes to required permit conditions, new source review standards, and permit application procedures. The EPA approved the revisions, except that it disapproved of the District’s failure to include a statement requiring modeling to be conducted in accordance with 40 CFR Part 51, Appendix W.
o On August 14, 2017, EPA approved revisions to the San Joaquin Valley Unified Air Pollution Control District portion of the California SIP regarding emissions of NOx, carbon monoxide, oxides of sulfur, and PM10 from boilers, steam generators and process heaters. Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District, 82 Fed. Reg. 37817 (Aug. 14, 2017).
o On August 15, 2017, EPA approved revisions to the Placer County Air Pollution Control District portion of the California SIP. The revisions relate to the District's Reasonably Available Control Technology (RACT) demonstration for the 1997 and 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS).  The revisions also contain negative declarations for the polyester resin source category for the 2008 8-hour ozone standard. Approval of California Air Plan Revisions, Placer County Air Pollution Control District, 82 Fed. R 38604 (Aug. 15, 2017).
• Nevada
o On June 7, 2017, EPA approved revisions to Nevada’s April 3, 2012 SIP submission, as well as its August 26, 2016 supplement. These revisions address the requirement to submit by the eighth year of the first maintenance plan a second 10-year maintenance plan for carbon monoxide emissions in the Lake Tahoe area. The revisions include a surrogate monitoring method for carbon monoxide in the area, which requires the state to rely on the indirect indicator of traffic counts. EPA’s final action revised the effective date to July 7, 2017. Air Plan Approval; Nevada, Lake Tahoe; Second 10-Year Carbon Monoxide Limited Maintenance Plan, 82 Fed. Reg. 26351 (Jun. 7, 2017).
o On June 16, 2017, EPA approved revisions to the Clark County Department of Air Quality and Washoe County Health District portions of the Nevada SIP regarding particulate matter emissions from fugitive dust and wood burning. The rule adopted EPA Test Method 9 to determine compliance and added national wood heater requirements.  Approval of Nevada Air Plan Revisions, Clark County Department of Air Quality and Washoe County Health District, 82 Fed. Reg. 27622 (Jun. 16, 2017).
o On August 8, 2017, EPA approved a revision to the Nevada Regional Haze SIP consisting of a 5-Year progress report documenting progress toward achieving visibility goals by 2018 in Class I Federal areas in Nevada and neighboring states. Nevada’s submission indicated that no SIP revisions would be necessary to make progress towards the reasonable progress goals, and EPA agreed.  Approval and Promulgation of State Implementation Plans; Nevada; Regional Haze Progress Report, 82 Fed. Reg. 37020 (Aug. 8, 2017).

D. Case Decisions, Suits

In Sierra Club v. North Dakota, the Sierra Club sued to compel EPA to promulgate regional designations following revision of the sulfur dioxide NAAQS.  Sierra Club v. North Dakota, No. 15-15894, 2017 WL 3687448 (9th Cir. Aug. 28, 2017).  The district court approved a consent decree between the parties, which contained a schedule for EPA to issue the required designations. Id. at *1. Several states, which had intervened in the underlying action, appealed the court’s approval of the consent decree. On appeal, the states argued “that the Consent Decree improperly disposes of their claims, imposes duties and obligations on the States without their consent, and is not ‘fair, adequate and reasonable’ because its deadlines far exceed the Act's three-year period to promulgate designations.”  Id. at *3.  The Ninth Circuit held that the consent decree did not dispose of the states’ claims, nor did it impose duties and obligations on the States without consent because the requirements complained of originated in the Data Requirements Rule, not the decree. Id. at *4; see also Data Requirements Rule for the 2010 1-Hour Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard (NAAQS), 80 Fed. Reg. 51,052 (Aug. 21, 2015).  Ultimately, the court upheld the consent decree, finding it to be a fair, adequate, and reasonable resolution to EPA’s delay.

In Center for Biological Diversity, et al., v. Scott Pruitt, Defendant Scott Pruitt sought relief from a consent decree requiring EPA to approve, disapprove, or conditionally approve Delaware's plan to use reasonably available technologies to control major sources of nitrogen oxides and other volatile organic compounds by September 29, 2017. No. 16-CV-04092-PJH, 2017 WL 3782696, at *1 (N.D. Cal. Aug. 31, 2017). EPA argued that its decision for Delaware’s SIP may turn on its ongoing policy review into related startup, shutdown and malfunction rules. Id. at *2. The court rejected Pruitt’s contention because any alleged “change in circumstances” was of EPA’s own making and whether EPA’s policy review will impact the SIP decision is speculative at this juncture. Id. at *3. The court also held that, even if EPA had demonstrated a change in circumstances justifying relief, EPA’s request to indefinitely extend the deadline in the consent decree was not suitably tailored. Id.


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