Regional Air Authority: Title V Operating Permit Challenge
We represented a regional air authority in the successful defense of a Title V air operating permit issued to Washington State’s only coal-fired power plant. The permit was challenged by environmental plaintiffs on the grounds that it fails to include limits on carbon dioxide and mercury emissions. They also sought a more stringent nitrogen oxide limit for the plant. The appeal was heard by Washington's Pollution Control Hearings Board, which has informed the parties that it will dismiss the appeal and uphold the permit.
The appellants sought a ruling that the air authority was obligated to develop emission limits based on a general nuisance standard, in advance of pending regulatory action on both mercury and carbon dioxide emissions at the federal and state level. They also argued that new limits should be established under the State RACT standard. The main issue on appeal was whether the Air Authority has the power to establish new emission limits when it issues an air operating permit. EPA and State requirements governing the program provide that operating permits are to be a collection of existing requirements.