Haze rule petitions to include industries

U.S. court clerk OKs intervention

Industry groups can intervene in all seven petitions for review -- including the state's -- of the U.S. Environmental Protection Agency's plan for implementing the 1999 Regional Haze Rule in Arkansas, a federal appeals court clerk ordered Friday.

Entergy Arkansas, Entergy Mississippi, Entergy Power, the Arkansas Electric Cooperative and the Energy and Environmental Alliance filed a joint motion to intervene in the cases Thursday, and 8th U.S. Circuit Court of Appeals Clerk Michael Gans approved the intervention Friday in a one-sentence order. In the federal court of appeals, clerks can grant such motions instead of judges.

Gans said by phone Friday that the industry groups' motion was unopposed, unlike the joint motion to intervene in the cases. That motion, filed Dec. 12 by the Sierra Club and the National Parks Conservation Association, was referred to a three-judge panel for review. No decision has been made on that motion.

The EPA authorized the motion to intervene on the condition that the industry groups all file a single intervenor brief, and the Sierra Club and the National Parks Conservation Association took no position on the motion, according to the industry groups' Thursday filing.

Glen Hooks, president of the Sierra Club's Arkansas chapter, said he wasn't surprised the intervention by industry groups was granted, noting that those groups would be affected by the haze plan. Hooks said he thinks the Sierra Club and National Parks Conservation Association's motion will be granted, too, given the Sierra Club's history of involvement in the haze plan and prior court proceedings.

"It just hasn't happened yet," he said.

Messages left for Entergy spokesmen were not returned Friday afternoon.

The state filed the first "petition for review" of the EPA's haze plan Nov. 22, and six other industry and conservation groups filed separate petitions for review by the end of the month.

Entergy, the Arkansas Electric Cooperative and the Energy and Environmental Alliance of Arkansas filed their own separate cases, in addition to motioning to intervene in the others. Domtar -- a paper and pulp mill in Ashdown that would be affected by the haze plan -- and the Arkansas Affordable Energy Coalition filed their own petitions, and the Sierra Club and the National Parks Conservation Association filed a joint petition for review.

The state and several industry petitioners also submitted separate petitions to the EPA to reconsider the plan, in addition to filing Court of Appeals petitions for review.

The state and industry groups have opposed the final EPA plan to implement the Regional Haze Rule, while the Sierra Club and the National Parks Conservation Association have supported it. The plan was encoded in the federal register as a rule in September and went into effect Oct. 27, according to the register.

The Regional Haze Rule is the result of requirements passed by Congress in the 1990s to implement parts of the Clean Air Act. It sets requirements for visibility at 156 national wildlife areas across the country and allows the EPA to require emissions reductions at industrial facilities -- often, coal-fired power plants -- that emit chemicals that contribute to haze, such as sulfur dioxide and nitrogen oxide.

The Arkansas Department of Environmental Quality is in charge of improving and monitoring visibility in Caney Creek and Upper Buffalo wilderness areas in Arkansas, and the Hercules-Glades Wilderness area and the Mingo National Wildlife Refuge in Missouri.

In Arkansas, when Caney Creek and the Upper Buffalo River last were measured for haze, they came in at 20.41 deciviews and 19.96 deciviews, respectively, according to the state's petition filed Nov. 22. 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 River by 2064, but the goal of the federal haze plan calls for 22.47 deciviews for Caney Creek and 22.51 deciviews for the Upper Buffalo River by 2018.

Under the plan, utilities estimated the cost of compliance to be at least $2 billion -- mainly for the cost to update two Entergy Arkansas coal-fired plants -- but the EPA put the costs of compliance at nearly $500 million. Entergy Arkansas has proposed mitigating some of the costs by closing its 1,700-megawatt White Bluff coal-fired plant near Redfield and eventually replacing it with natural gas or renewable energy sources.

The Department of Environmental Quality is working on its own implementation plan. Director Becky Keogh told the Arkansas Democrat-Gazette in September that the department would have to seek a stay to keep the federal plan from going into effect before the state plan is released.

The state argued in the fall that the federal haze plan did not address the department's concerns, consider current improvements in haze or consider the proposal by Entergy Arkansas to close its Redfield plant.

The petitions for review filed in November -- each about two pages without exhibits -- ask merely that the appeals court review the plan, but the motions to intervene detail groups' opinions on the plan.

The Sierra Club and the National Parks Conservation Association motioned to intervene Dec. 12, shortly after a briefing schedule was set.

The groups cited the members they have in Arkansas and Missouri, as well as efforts to protect "aesthetic and recreational interests" in the public lands that are affected by the Regional Haze Rule, as reasons to allow them to intervene. They further argued that the plan as written would protect people who live near, work or spend time at the wilderness areas affected by the plan. The plan would cut sulfur dioxide emissions by 68,500 tons per year and nitrogen oxide emissions by 15,100 tons per year, the groups noted.

While the groups have argued that the rule will improve respiratory health among nearby residents, the rule concerns only visibility, and the EPA has said it can consider only improvements to visibility in its implementation of the rule.

On Thursday, Entergy, the Arkansas Electric Cooperative and the Energy and Environmental Alliance of Arkansas motioned to intervene in all of the petitions for review before the 8th U.S. Circuit Court of Appeals. They argued that they could not be represented in the case by the EPA because of the EPA's broad goals and conflict with the groups' interests in having the plan altered. The three groups filed their own petitions for the EPA to reconsider its rule earlier this fall.

"This demonstrates that EPA cannot adequately represent Proposed Intervenors' interests and may resolve or defend this action in a manner that does not correspond with Proposed Intervenors' interests," the Thursday filing reads.

Metro on 12/24/2016

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