                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

_________________________________________
                                          )
SIERRA CLUB,                              )
                                          )
      Plaintiff,                          )
                                          )
             v.                           )                   Civil Action No. 16-2238 (ESH)
                                          )
SCOTT PRUITT, in his official capacity    )
as Administrator, United States           )
Environmental Protection Agency,          )
                                          )
      Defendant.                          )
_________________________________________ )


                                  MEMORANDUM OPINION

       Plaintiff 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.

                                         BACKGROUND

       In 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).

       This 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).

       On 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



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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 petition.

                                            ANALYSIS

       “When 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)).

       Plaintiff’s 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



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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.

                                         CONCLUSION

       The EPA 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 violations. A separate Order

accompanies this Memorandum Opinion.



                                                      /s/ Ellen Segal Huvelle
                                                      ELLEN SEGAL HUVELLE
                                                      United States District Judge
Date: March 2, 2017




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