Last week, the 3rd Circuit Court of Appeals
vacated EPA's approval of Pennsylvania's SIP for
attaining the 2008 NAAQS for NOx. Specifically,
the Court found that EPA's approval was arbitrary and
capricious with respect to three separate, but related, provisions
of the SIP. The flawed provisions were:
- The NOx standard for power
plants utilizing selective catalytic reduction was set at 0.12
pounds/MMBtu.
- This standard only applied at
operating temperatures above 600 degrees F.
- The SIP did not require that power
plants maintain records demonstrating the operating
temperature.
Sierra Club identified a number of flaws with these
provisions. However, they really all boiled down to the fact
that judicial deference to agency expertise does not permit the
agency to operate on the principle of ipse dixit.
Simply put, there's a difference between a court's review
of an agency's exercise of its expert scientific and technical
judgment as documented in the
