8th Circuit Rehearing In Mine Air Dispute Tests NSR 'Aggregation' Policy

摘要

A federal appeals court's decision to reconsider its ruling in a dispute over North Dakota's right to interpret EPA Clean Air Act new source review (NSR) policies poses a test for whether the Biden administration will reverse a Trump-era policy on when emissions from industrial facilities must be "aggregated" for air permitting purposes. The case, Casey Voigt, et al v. Coyote Creek Mining Co., LLC, pending in the U.S. Court of Appeals for the 8th Circuit, focuses on a Coyote Creek, ND, coal mine and related power plant and whether a coal pile on the site and a coal processing facility it supplies should be combined, or aggregated, for the purposes of NSR. Combining the emissions of two facilities as one source makes it more likely the source will exceed "major source" emissions limits, which would require it to undergo full-blown NSR, and potentially add stringent new pollution controls. Coal processed at he site is then moved again to the nearby Coyote Station power plant, which is the subject of a separate but related dispute over the validity of the power plant's Clean Air Act (CAA) Title V operating permit. North Dakota issued its decisions on NSR and Title V permits for the facilities under delegated air law authority. Local ranchers Casey and Julie Voigt are using the 8th Circuit litigation to contest the NSR permit at Coyote Creek, and petitioned EPA to object to the Title V permit for the Coyote Station. The petition claims the emissions for the mine complex and power station should be aggregated, and therefore the permit is flawed.