                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

                                       )
SIERRA CLUB,                           )
                                       )
             Plaintiff,                )
                                       )
      v.                               )                     Civil Case No. 17-906 (RMC)
                                       )
SCOTT PRUITT, in his official capacity )
as Administrator of the United States  )
Environmental Protection Agency        )
                                       )
             Defendant.                )
                                       )


                                 MEMORANDUM OPINION

               In this 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.

                                       I. BACKGROUND

               Title V 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. §§

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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).

               If EPA 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 filed.” Id.

               In this 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.

               Receiving 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.

                                        II. JURISDICTION

               While 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.


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                                          III. ANALYSIS

               Because 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).

               Sierra 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].

               As of 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 request for a short extension. The Court will order EPA to respond to Sierra Club’s

petition on or before January 31, 2018.




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                                        CONCLUSION

               As EPA concedes, it has failed to perform its nondiscretionary duties under the

Clean Air Act. Sierra Club’s Motion for Summary Judgment [Dkt. 12] will therefore be granted

in part, and judgment will be entered in favor of Sierra Club. EPA will have until January 31,

2018, to remedy its violation. A memorializing Order accompanies this Memorandum Opinion.




Date: November 17, 2017                                            /s/
                                                    ROSEMARY M. COLLYER
                                                    United States District Judge




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