In the Matter of the Prevention of Significant Deterioration (PSD) Air Quality Permit Application of Hyperion Energy Center – Hyperion Refining, LLC – Permit #28.0701 – PSD

Summary

The South Dakota Supreme Court reviewed challenges to a Prevention of Significant Deterioration air-quality permit issued to Hyperion Refining, LLC for a proposed petroleum refinery and power plant. The court addressed whether an environmental impact statement was required, whether the permit remained valid while an extension request was pending, whether the extension was justified, and whether the carbon monoxide Best Available Control Technology limit was supported. The court affirmed the circuit court and the agency decisions.

Holdings

1. The Board and DENR had authority to order an EIS, but did not abuse their discretion by declining to do so because the EIS statute makes an EIS optional and the PSD permitting process addressed the relevant environmental concerns.
2. A PSD permit does not become invalid solely because the agency has not entered a final decision on a timely extension request before the original eighteen-month construction deadline expires.
3. Hyperion's amended request for a deadline extending eighteen months after the amended permit was issued was an amendment to its timely initial request, not a new untimely application.
4. The Board did not clearly err in finding that Hyperion presented satisfactory justification for extending the construction deadline.
5. The Board did not clearly err in determining that a carbon-monoxide BACT limit of 0.007 lb/mmBtu was achievable for Hyperion's proposed facility.

Questions Presented

1. Whether an environmental impact statement should have been ordered before issuance of the PSD permit.
2. Whether the original permit became invalid when the initial construction deadline expired while Hyperion's timely extension request was still pending.
3. Whether Hyperion presented satisfactory justification for extending the construction deadline.
4. Whether the Board clearly erred in determining that a carbon-monoxide BACT limit of 0.007 lb/mmBtu was achievable.

Disposition

affirmed