A federal judge on Monday granted the state's motion to intervene in a lawsuit that led the U.S. Environmental Protection Agency to issue a draft compliance plan for Arkansas on a 1999 law on haze.
On Monday, U.S. District Judge J. Leon Holmes wrote that Arkansas has a valid interest in making sure the rule-making process is adequate and in protecting ratepayers from unnecessary rate increases. Holmes also noted an EPA offer to push back its deadline for issuing a final federal implementation plan and to propose a new consent decree after negotiations that include Arkansas officials.
The 1999 law at issue is the Regional Haze Rule, which Congress approved as an add-on to the Clean Air Act that requires visibility improvements in certain national wilderness areas. It targets the sources of haze -- sulfur dioxide and nitrogen oxide, which often come from coal plants.
The Regional Haze Rule sets out intermittent goals to pace states to meet an ultimate 2064 target for haze reductions.
The Arkansas Department of Environmental Quality has asked the EPA to withdraw its rule and work with the state on a new one.
"We think the state would be better served through a state implementation plan," said Judd Deere, spokesman for Arkansas Attorney General Leslie Rutledge.
Rutledge has argued in public comments and legal filings that she believes the state should not plan right now because a five-year progress report indicates that the state is already on pace to meet its first set of goals for haze reduction.
EPA officials did not immediately comment on Holmes' decision Monday afternoon.
The EPA issued the federal implementation plan to the chagrin of state and industrial leaders who believed the requirements for Arkansas overstepped what was called for by law -- particularly the inclusion of the 1,700-megawatt Independence power plant near Newark.
EPA officials have said the plant's inclusion in the plan is reasonable, citing its size and potential impact on visibility. The plant has no major emissions-reducing scrubbers.
Meanwhile, Entergy Arkansas this month proposed shutting off coal operations at its 1,700-megawatt White Bluff plant near Redfield to comply with the federal plan by 2028, citing the high cost of adding emissions-reducing scrubbers and uncertainty about coal's future in power generation. The company intends to replace the power it generates there with natural gas, solar and/or wind power.
The state is now the third party in the lawsuit and the only one that opposed the federal implementation plan issued in March.
Nucor Steel Arkansas and Nucor-Yamato Steel, along with the industry-group Balanced Energy Arkansas, had also filed motions to intervene in the lawsuit. Holmes denied those motions Monday, saying the groups did not show that their interests in the case would not be adequately represented by the state.
In 2012, the EPA partially rejected the original plan submitted by the Arkansas Department of Environmental Quality to comply with the Regional Haze Rule, but neither the state nor the EPA followed up with a new plan within the next two years.
In 2014, the Sierra Club sued the EPA, requesting that the agency craft a federal implementation plan for the Regional Haze Rule.
At the end of 2014, the Sierra Club and the EPA proposed a consent decree whereby the EPA would issue a federal implementation plan by early 2015. The agency issued that plan in March, even though the consent decree was not final.
Rutledge filed a motion to intervene in the lawsuit with the support of the Arkansas Department of Environmental Quality, arguing that the consent decree would take away the state's authority granted under the Clean Air Act to determine its own path toward meeting the act's requirements, called "cooperative federalism."
Holmes' ruling Monday acknowledged the inclusion of "cooperative federalism" in the act.
The EPA and Sierra Club had opposed the state's intervention, arguing that it was untimely and would delay the litigation.
On Monday, Sierra Club Arkansas Director Glen Hooks issued a statement, saying Arkansas was "finally" getting involved three years after submitting its first plan and was now simply part of "deadline discussion between the Sierra Club and the EPA to complete the plan."
Hooks argued that the order says nothing about the merits of the EPA's federal implementation plan.
The Regional Haze Rule for Arkansas targets pollution at the Caney Creek and Upper Buffalo River wilderness areas and two spots in Missouri: the Hercules-Glades Wilderness Area and the Mingo National Wildlife Refuge.
When Caney Creek and the Upper Buffalo River last were measured for haze, they came in at 26.36 deciviews and 26.27 deciviews, respectively. A deciview is a measure of visibility meant to represent the minimal perceptible change visible to the human eye.
The EPA goal is to reduce haze to 11.58 deciviews for Caney Creek and 11.57 deciviews for the Upper Buffalo by 2064 by reducing sulfur dioxide and nitrogen oxide levels.
The Arkansas Department of Environmental Quality has asked the EPA to consider its five-year progress report that shows steady improvement and the achievement of visibility goals by 2018.
Planning for the second phase of the Regional Haze Rule would begin in 2018, and stricter visibility goals would come five years later.
In public comments on the plan published this month, environmental groups argued that the plan would help preserve the state's tourism industry in wilderness areas that stand to benefit from the Regional Haze Rule.
Additionally, those groups have pointed out deaths, hospitalizations and respiratory illnesses connected to sulfur dioxide and nitrogen oxide releases, but the EPA has said it will likely not factor those comments into its decision on a final federal implementation plan for the Regional Haze Rule because it only targets visibility.
Monday's order does not deal with the federal plan's substance, Holmes wrote.
"The only issue in this case is the deadline by which the EPA must fulfill its nondiscretionary duty to adopt a federal implementation plan or approve a state implementation plan for regional haze in Arkansas," he wrote.
Metro on 08/25/2015