ELR Citation: 42 ELR 20019
No(s). 02-71657, 08-72642 (9th Cir. Jan 19, 2012)

The Ninth Circuit denied a chemical company's petitions for review challenging EPA's partial disapproval of a proposed revision to Montana's SIP governing sulfur dioxide (SO2) emissions, its 1993 "SIP Call" that started the review process, and the Agency's 2008 federal implementation plan (FIP) remedying Montana's SO2 SIP. EPA did not act arbitrarily or capriciously or abuse its discretion by making the SIP Call. EPA did not ignore actual SO2 monitoring data when it issued the SIP Call. Rather, EPA expressly addressed these results and explained their shortcomings. In addition, EPA did not act arbitrarily or capriciously by relying on predictive modeling to make the SIP Call. Nor did EPA err in disapproving portions of the revised SIP. It was reasonable for the Agency to reject Montana's stack height credit calculation, to require that the SIP include new source performance standard limits consistent with the modeling demonstration, and to disapprove of the SIP for failing to include numerical emissions limits on flares. Last, EPA did not err in promulgating the requirements set forth in the FIP. The Agency's failure to issue the FIP within two years of its SIP disapproval did not deprive EPA of its authority to promulgate the FIP, and it did not act arbitrarily or capriciously in promulgating the requirements set forth in the FIP.