United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE.
action, Plaintiff Sierra Club sues the Environmental
Protection Agency seeking to compel EPA to respond to Sierra
Club's administrative petition objecting to a proposed
operating permit for a power plant. EPA has conceded that, in
contravention of its statutory obligations, it has not
responded to Sierra Club's petition. Answer [Dkt. 7]
¶¶ 27, 30. The only live issue, then, is by what
date EPA needs to issue that response. Sierra Club requests
that the Court order EPA to respond within 60 days of the
issuance of the Court's Order. EPA requests a slightly
longer period, requesting until January 31, 2018. For the
reasons stated below, the Court will order EPA to issue its
response by January 31, 2018.
of the Clean Air Act, 42 U.S.C. §§ 7401-7671q
(2012), establishes a permit program relating to the
operation of stationary sources of air pollution, such as
power plants. While primarily state-run, EPA exercises
oversight responsibilities, and Sources of air pollution must
submit comprehensive requests for operating permits to state
agencies. Id. §§ 7661a; 7661c. EPA
maintains oversight responsibilities, and state permitting
authorities must submit any proposed permits for EPA review,
in response to which EPA may lodge an objection. Id.
§ 7661d(a)(1); § 7661d(b)(1).
does not object to a proposed permit on its own, the Clean
Air Act allows “any person [to] petition the [EPA]
Administrator” to do so. Id. §
7661d(b)(2). “The Administrator shall grant or deny
such petition within 60 days after the petition is
matter, Sierra Club submitted such a petition on August 8,
2016, requesting that EPA object to a permit issued by the
Tennessee Department of Environment and Conservation. Compl.
[Dkt. 1] ¶ 1. Under § 7661d(b)(2), EPA had 60
days-or until October 8, 2016-to respond.
no response, on October 12, 2016, Sierra Club submitted a
letter to EPA indicating its intention to file its Complaint,
which fulfilled its statutory notice requirements.
See 60-Day Notice Letter dated 10/12/2016 [Dkt.
1-1]; 42 U.S.C. § 7604(b)(2); 40 C.F.R. §§
54.2, 54.3. Sierra Club filed its Complaint on May 15, 2017.
Compl. [Dkt. 1]. Sierra Club and EPA have submitted dueling
Motions for Summary Judgment. Pl.'s Mot. Summ. J. [Dkt
12]; Def.'s Mot. Summ. J. [Dkt. 17]. Those motions are
now ripe for the Court's review.
the parties do not contest jurisdiction, it is incumbent on
the Court to establish its own jurisdiction. In this
instance, the Clean Air Act grants federal district courts
jurisdiction to order EPA to perform nondiscretionary duties.
42 U.S.C. § 7604(a). The Clean Air Act further
authorizes private entities, such as Sierra Club, to bring
citizen suits against EPA “where there is alleged a
failure of [EPA] to perform any act or duty . . . that is not
discretionary.” Id. § 7604(a)(2). The
Court has jurisdiction over this issue.
EPA concedes it has not responded to Sierra Club's
petition, the parties are only contesting exactly when EPA
must respond. “When an agency has failed to meet the
statutory deadline for a nondiscretionary act, the court may
exercise its equity powers ‘to set enforceable
deadlines both of an ultimate and an intermediate
nature.'” Sierra Club v. Johnson, 444
F.Supp.2d 46, 52 (D.D.C. 2006) (quoting Nat'l
Resources Defense Council v. Train, 510 F.2d 692, 705
(D.C. Cir. 1974)). “A court appropriately may decline
to impose an immediate deadline . . . 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
Train, 510 F.2d at 713).
Club argues that the Court should order EPA to respond to
Sierra Club's petition by 60 days after the issuance of
the Court's Order. EPA requests that it be permitted to
respond by January 31, 2018. In support of its request, EPA
has submitted a detailed affidavit by Anna Marie Wood,
Director of the Air Quality Policy Division of EPA,
identifying EPA's current workload and obligations. Decl.
of Anna Marie Wood [Dkt. 17-3].
the date of this Memorandum Opinion, the difference between
the two proposed deadlines is approximately two weeks. Ms.
Wood's affidavit, and supporting documentation, convince
the Court that EPA's request for a modestly extended
deadline is made in a good faith effort to manage EPA's
competing Title V obligations. The Court also notes that the
upcoming holiday season presents its own inevitable
complications, which further supports EPA's ...