Regional Reports: Region 8

Mary Ann Throne
Hickey Mackey Evans & Walker
Cheyenne, Wyoming
Mthrone@hickeymackey.com

Implementation of Section 112(j)

The states in Region 8 are generally taking a uniform approach to implementation of the MACT Hammer provisions of Section 112(j), according to Victoria Parker-Christensen of EPA's Region 8 office. All of the states, with the exception of Utah, have sent letters to their Title V sources reminding them of the Section 112(j) requirements and notifying them of their need to file Part 1 applications by May 15, 2002. EPA has taken similar action to inform sources on tribal lands of the Section 112(j) requirement. Utah held a conference with their Title V sources and used that forum to inform the sources of the requirement, but conveyed the same message. The State of Wyoming letter to Title V sources acknowledges that it would have been an overwhelming task for the states to develop case-by-case MACT by May 15, 2002, and explains that no substantive information is required of sources until submission of the Part 2 application, due May 15, 2004.

Wyoming

The U.S. District Court in Wyoming has issued an important ruling upholding EPA's right to overfile under the Clean Air Act, even when a state has collected a penalty and resolved the matter through a state consent decree. In United States v. Solutia, Inc., et al., D. Wyo. No. 00-CV-046-D, the court ruled on March 29, 2002, that because there was no privity between the United States EPA and the State of Wyoming for purposes of res judicata, the state's consent decree imposing a penalty of $200,000 for violations of the facility's permit limits for particulate matter preclude an independent enforcement action under Section 113 of the Clean Air Act. The court relied heavily on the reasoning of the court in United States v. Power Engineering Co., 125 F. Supp.2d 1050 (D. Colo. 2000), a RCRA case rejecting the analysis in Harmon Industries v. Browner, 191 F.3d 894 (8th Cir. 1999). As the court in Power Engineering concluded, the Wyoming Court also reasoned that there was no privity between the state and federal governments because the United States lacked a "laboring oar" in the state proceeding representing its interests. (citing Drummond v. United States, 324 U.S. 316 (1945)). In Solutia, the Court observed that EPA had not been satisfied with the state's enforcement efforts, was unaware of the Consent Decree until after it was entered and did not participate or control in the state court litigation. (For a detailed discussion of the background of this case, see EPA Overfilings in Wyoming, 4 Air Quality Committee Newsletter, ABA Section of Environment, Energy, and Resources 25 (November 2000)).

North Dakota

The state of North Dakota is currently reviewing the adequacy of its PSD State Implementation Plan (SIP) and has taken comments on its analysis indicating that there are no violations of PSD increments for sulfur dioxide. North Dakota and EPA are at odds as to whether there are violations of the SO2 increment in four North Dakota Class I areas. Following concerns raised about potential increment violations in Class I areas during a 1999 permitting action, North Dakota and EPA began discussions to consider whether a SIP revision would be necessary. Based on North Dakota's commitment to conduct additional modeling, EPA agreed not to call for a SIP revision. Both EPA and North Dakota have completed additional modeling and have reached different conclusions about increment compliance in North Dakota's Class I areas. North Dakota and EPA are at odds over a number of issues related to assessing increment compliance. Based on testimony provided by Richard Long, EPA Region 8 Air and Radiation Program Director, at a May 6, 2002 public hearing and information on North Dakota's Website, http://www.health.state.nd.us/psd/, the disputed issues include, among others, whether or not emissions from sources granted Class I variances under Section 165 of the Clean Air Act must be included in order to determine whether the increment has been exceeded, whether North Dakota's approach adequately evaluates compliance with short term increment standards, and how to calculate the baseline. Finally, the state proposed not to retroactively apply Class I SO2 increments to the Fort Peck Indian Reservation because the state had approved permits prior to the Reservation's redesignation. EPA did not take a position on this topic and agreed to review the state's position and consult with the tribe on the issue.

Colorado

The Colorado attorney general settled at the end of April with Rocky Mountain Steel Mill, located in Pueblo, Colorado, for a cash settlement of $2.2 million and $20 million in controls. The settlement requires the facility to retrofit its furnace operation. According to Assistant Attorney General Gary Kaufman, the facility began having opacity compliance problems in late 1996. Colorado had entered into various settlements with the company to correct the problems, but proceeded with litigation after settlement discussion broke down again in 2001. The case was set to go to trial in June 2002.