Arkansas Court of Appeals upholds Big River Steel’s Clean Air Act permit

The Arkansas Court of Appeals recently upheld a decision by the Arkansas Pollution Control and Ecology Commission (“APCEC”) to grant Big River Steel, L.L.C. a Clean Air Act permit to allow steel mill operations in Mississippi County, Arkansas.  Nucor Steel-Arkansas and Nucor-Yamato Steel Company had opposed the permit.

Big River Steel utilized air-dispersion modeling to predict future emissions in its Clean Air Act Title V permit application to the Arkansas Department of Environmental Quality (“ADEQ”).  Because there was no monitor for the ambient air quality in Mississippi County, Arkansas, Big River Steel utilized data from the monitor in Dyersburg, Tennessee due to its similarity to Mississippi County.  After its initial modeling run yielded a predicted particulate matter higher than federal ambient air quality standards, Big River Steel determined that it could properly reduce some of the inputs it had previously used.  The second modelling run yielded a particulate matter level within the acceptable federal emissions range.  During the notice and comment period, Nucor submitted over forty comments heavily criticizing Big River Steel’s modeling.  ADEQ approved Big River Steel’s permit, and Nucor appealed to the APCEC.

APCEC held a four day adjudicatory hearing in February 2014, where Big River Steel was represented by PPGMR Law (Alan Perkins and John Peiserich) and Baker Hostetler, LLP.  The administrative hearing officer issued a sixty-nine page opinion on March 20, 2014 that recommended the APCEC uphold the permit, which the APCEC Commissioners did on April 25, 2014.  After Nucor brought suit challenging the permit in Mississippi County Circuit Court, the case was transferred to the Arkansas Court of Appeals under a unique grant of authority by Arkansas Code Annotated § 8-4-223(d).

The Arkansas Court of Appeals refused to allow Nucor additional discovery and upheld the APCEC’s decision based on the agency’s “specialization and experience” dealing with air quality matters.  In particular, the Court dismissed Nucor’s claims that Big River Steel had misrepresented emissions factors due to concerns by its furnace manufacturer and improperly failed to consider “secondary” particulate matter in its analysis.  The Court also upheld Big River Steel’s use of Dyersburg, Tennessee as a representative monitor of pre-construction air quality based on ADEQ’s acceptance of Dyersburg as representative of Mississippi County in land use, population, and terrain.

The full opinion from the Arkansas Court of Appeals can be found at 2015 Ark. App. 703.