ELR Citation: ELR 20082
No(s). s. 07-9546, -9547 (10th Cir. Apr 14, 2009)

The Tenth Circuit granted in part and denied in part petitions challenging the U.S. Environmental Protection Agency's (EPA's) site-specific federal implementation plan (FIP) for a coal-fired power plant located on the Navajo reservation in northwest New Mexico. The court granted EPA's motion for voluntary remand of the FIP's fugitive dust limit. All other aspects of the rule, however, were upheld. EPA had no need to conduct additional modeling and analysis to demonstrate the adequacy of the plan. The FIP codifies in part the New Mexico plan—previously studied, analyzed, approved, and in place—and relies on current data demonstrating that the air quality in the area of the plant is better than the national air standards for criteria pollutants. The FIP, by necessity, is adequate because the plan is but a stricter version of the satisfactory emissions limits already applied by the plant and implemented throughout the state of New Mexico. In addition, EPA's decision to enact a 20% opacity limit for particulate matter was not arbitrary and capricious, and EPA's treatment of malfunction events is consistent with its treatment of startup and shutdown episodes.