Environmental Groups Sue EPA To Force Action on Overdue Haze Plans and To Trigger Deadline for FIPs

On Feb. 7, several environmental groups formally notified EPA that they intend to file suit to force EPA to act on 39 overdue state Regional Haze plans and to trigger a countdown to issuance of Federal Implementation Plans (FIPs) to substitute for deficient State haze reduction programs. The groups allege that EPA has missed the deadline to issue “findings of failure to submit” for state implementation plans (SIPs) that have not been turned in by the States, which were due by July 31, 2021.

Under the CAA, if a state fails to submit a SIP, or a state’s SIP has not been approved by EPA, EPA must issue a FIP within two years of making a finding of failure to submit. As many will remember, during the first Regional Haze planning period, EPA issuance of FIPs caused considerable angst for the regulated community and several states took legal action to regain control over their Regional Haze plans. EPA is still in the process of trying to resolve Haze FIP issues. For example, the State of Wyoming is still negotiating with EPA regarding the haze control requirements applicable to the PacifiCorp Jim Bridger coal-fired power plant. If the court petition is granted, EPA could be required to either adopt FIPs or to take specified action to secure approvable state haze plans. If EPA chooses to adopt FIPs, the regulated community and States will likely push back and file lawsuits just as they did during the first round, suing EPA for implementing unreasonably rejecting approvable SIPs in favor of a FIP.

A complicating new dynamic has been added to the Regional Haze second round: environmental justice (EJ) issues. Even though the primary goal of the Regional Haze program is to improve visibility, environmental groups are still pushing EPA to consider the EJ issues that may arise due to the presence of haze. It’s unclear how states or the regulated community will ensure that EJ issues are properly considered during the planning process or what will even be expected of them bearing in mind the Regional Haze standards are not health-based.

Facilities that are subject to the second round of the Regional Haze planning process requirements should ensure that they understand the Regional Haze program and what will be required from their facility under a SIP or possible FIP. To assist in communications with and support for local agency haze plans, as well as obtain direction on the planning process and any future EPA actions, please contact a Clark Hill Environmental & Natural Resources attorney.