Northern Plains Resource Councill v. United States Environmental Protection Agency

Petitioner, Northern Plains Resource Council (the “Council”), 1 seeks a review of the U.S. Environmental Protection Agency’s [“EPA”] decision 2 conditionally granting a “prevention of significant deterioration of air quality” [PSD] permit, as required by the Clean Air Act 3 and by EPA regulations, 4 to a consortium of investor-owned utilities (the “Consortium”) 5 for two coal-fired electric power plants under construction at Colstrip, Montana (“Colstrip Units Nos. 3 and 4”). Two rather technical issues are raised: 6

The first is whether the EPA’s approval of the Consortium’s permit application is improper because the Colstrip Units will not utilize the “best available control technology” [hereinafter BACT] as required by Section 165(a)(4) of the Act, 42 U.S.C. § 7475 (a)(4), and the EPA’s regulations, 40 CFR § 52.21 (j)(2) (1980). Two sub-issues are raised by the Council in its challenge to EPA’s acceptance of the Colstrip plan as BACT. First, the Council argues that, because the projected emissions of particulates exceed the applicable 1978 new source performance standards [NSPS], EPA has violated the dictates of § 165(a)(3XC) of the Act which requires that BACT must not result…