United States District Court, District of Columbia
SEGAL HUVELLE United States District Judge.
Sierra Club brings this action against the Administrator of
the United States Environmental Protection Agency
(“EPA”) to compel the EPA to respond to two
pending petitions, in which plaintiff asks the EPA to object
to two operating permits issued under title V of the Clean
Air Act, 42 U.S.C. §§ 7661-61f. Before the Court
are plaintiff's motion for expedited summary judgment
(Pl.'s Mot. for Summary Judgment, ECF No. 8) and
defendant's cross-motion for summary judgment on remedy
(Def.'s Cross-Motion for Summary Judgment, ECF No. 9). As
defendant concedes liability, the only disputed issue is
remedy. For the reasons stated herein, the Court will grant
plaintiff's motion as to liability and grant
defendant's motion as to remedy.
1990, Congress enacted title V of the Clean Air Act,
establishing a permit program covering the operations of
stationary sources of air pollution. State permitting
authorities must submit any proposed title V permits to EPA
for review. 42 U.S.C. § 7661d(a)(1); 40 C.F.R. §
70.8(a)(1). Upon receipt of a proposed permit, the EPA has 45
days to object to the final issuance of that permit if it
“determine[s]” that the proposed permit
“contains provisions that are . . . not in
compliance” with “applicable requirements of [the
Act].” 42 U.S.C. § 7661d(b)(1); see 40
C.F.R. § 70.8(c). If EPA does not object, “any
person may petition the Administrator” to do so within
60 days after the expiration of the 45-day period. 42 U.S.C.
§ 7661d(b)(2); see also 40 C.F.R. §
70.8(d). The Administrator is required to “grant or
deny such petition within 60 days after the petition is
filed.” 42 U.S.C. § 7661d(b)(2).
case concerns title V operating permits for two coal-fired
plants operated by Duke Energy Progress, LLC, in North
Carolina - the Asheville Steam Electric Plant and Roxboro
Steam Electric Plant. (Pl.'s Statement of Material Facts
¶¶ 1-16, ECF No. 8-2 (“Pl.'s
Facts”).) A proposed title V permit for the Asheville
Plant was submitted to the EPA for review on April 15, 2016,
and the EPA's forty-five day review period expired on May
30, 2016. (Pl.'s Facts ¶ 4.) A proposed title V
permit for the Roxbury Plant was submitted to the EPA for
review on April 4, 2016, and the EPA's forty-five day
review period expired on May 19, 2016. (Pl.'s Facts
¶ 12.) On June 17, 2016, plaintiff filed with the EPA a
petition to object to the issuance of the Asheville permit,
and on June 23, 2016, it filed a petition to object to the
issuance of the Roxbury permit (collectively the “Duke
Energy Petitions”). (Id. ¶¶ 5, 13.)
In both petitions, plaintiff contended that the proposed
permit failed to impose conditions that ensured compliance
with all applicable requirements under the Clean Air Act.
(Id. ¶¶ 6, 14.) The EPA Administrator
failed to respond to either petition within sixty days of its
filing. See 42 U.S.C. § 7661d(b)(2).
August 25, 2016, plaintiff notified the EPA of its intent to
file a citizen suit against the EPA, see 42 U.S.C.
§ 7604(a), to compel responses to the Duke Energy
Petitions. (Pl.'s Facts ¶¶ 8, 16.) On November
10, 2016, plaintiff filed the above-captioned case. (Compl.,
ECF No. 1.) On December 9, 2016, plaintiff filed a motion for
expedited summary judgment, asking the Court to order the EPA
to respond to the Duke Energy Petitions within thirty days of
the Court's ruling on the motion for summary judgment.
(Pl.'s Mot. at 1-2.) On January 9, 2017, the EPA filed a
cross-motion for summary judgment on remedy, conceding
liability - that it failed to perform its non-discretionary
duty to respond to the Duke Energy Petitions within sixty
days - but asking the Court to give the EPA until June 30,
2017, to respond to the Duke Energy Petitions. (Def.s'
Cross-Mot at 1.) To date, the EPA has not responded to either
EPA has failed to discharge a nondiscretionary duty under the
Clean Air Act, a district court has jurisdiction to compel
the Administrator to fulfill it.” Sierra Club v.
Johnson, 444 F.Supp.2d 46, 52-53 (2006). “A court
appropriately may decline to impose an immediate deadline,
however, and may afford an agency additional time for
compliance, ‘where it is convinced by the official
involved that he has in good faith employed the utmost
diligence in discharging his statutory
responsibilities.'” Id. (quoting
Nat'l Resources Defense Council v. Train, 510
F.2d 692, 713 (2d Cir. 1974)).
position is that the EPA should be ordered to respond within
30 days of this Court's order on the motion for summary
judgment; defendant's position is that the EPA should be
ordered to respond by June 30, 2017. The EPA has submitted an
affidavit from Anne Marie Woods, the Director of the Air
Quality Policy Division (AQPD) within the Office of Air
Quality Planning and Standards (OAQPS), giving her opinion
that the EPA will need until June 30, 2017, to properly
respond to the Duke Energy Petitions. The EPA's
acknowledged inability to come even close to the statutory
sixty-day deadline in this, and every other, case is
troubling, but the affidavit is sufficiently detailed to
support defendant's proposed deadline and to satisfy the
Court that plaintiff's proposed 30-day deadline would be
unattainable. Accordingly, the Court will accept the
EPA's proposed deadline of June 30, 2017. The EPA should,
nonetheless, make every effort to respond to the Duke Energy
Petitions at the earliest possible date.
has violated the Clean Air Act by failing to perform its
non-discretionary duty to grant or deny the Duke Energy
Petitions within the statutorily required 60-day timeframe.
The EPA will be given until June 30, 2017, to remedy these