The decision yesterday in United States v. Minnkota Power
Cooperative serves as a useful reminder regarding how
important the burden of proof is in review of agency decisions. The
case started in 2006, as part of DOJ's NSR enforcement
initiative, when the United States and North Dakota brought suit
against Minnkota's Milton R. Young Station. The parties settled
and a consent decree was entered. Apparently, the parties knew at
the time of the settlement that there would be a dispute regarding
what would constitute BACT for NOx control and they thus
agreed to defer the issue; the consent decree simply provided that
the North Dakota Department of Health would determine BACT.
It took the DOH four years to do so, but, in November 2010, the
DOH concluded that selective non-catalytic reduction, or SNCR,
constitutes BACT for the MRY facility, which has unusual technology
involving cyclone-fired boilers combusting North Dakota lignite,
rather than bituminous or sub-bituminous
