EPA Solicits Comments on Proposed Resolutions of Clean Air Act Disputes

On Jan. 4, the U.S. Environmental Protection Agency (EPA) published two notices in the Federal Register regarding proposed consent decrees to resolve separate cases brought by United Refining Co. and co-petitioners the State of Wyoming and PacifiCorp. The agency is now soliciting public comment regarding the proposed consent decree and settlement agreement.

The EPA explained that in United Refining Co.’s lawsuit, the plaintiff filed a petition with the agency seeking a small refinery exemption from its 2019 Renewable Fuel Standard (RFS) obligations pursuant to the Clean Air Act (CAA). United Refining then filed suit on Jul. 20, 2020, compelling agency action because the EPA had not yet issued a decision on its petition. The proposed consent decree would resolve the dispute by creating a mid-February deadline by which the EPA must act on the plaintiff’s request.

In the petitions for review brought by Wyoming and PacifiCorp challenging the EPA’s partial disapproval of Wyoming’s Regional Haze State Implementation Plan (SIP) and the EPA’s promulgation of a Federal Implementation Plan (FIP) to address the disapproved elements of Wyoming’s SIP, the settlement agreement would resolve disputes pertaining to “nitrogen oxide (NOx) best available retrofit technology (BART) for PacifiCorp’s Wyodak electric generating unit (EGU).” The case originated in 2014 when the state and private plaintiffs asked the Tenth Circuit to scrutinize the EPA’s decision.

The proposed settlement agreement sets forth deadlines by which Wyoming and the EPA must act with respect to the development of a SIP modification addressing NOx BART requirements for Wyodak. If certain conditions are met, the parties will jointly move for dismissal of the petition, the agreement states.

For both proposed agreements the public comment window is open until Feb. 3.