United States Court of Appeals, District of Columbia Circuit
May 1, 2019
Petition for Review of Final Action of the United States
Environmental Protection Agency
N. Powell argued the cause for petitioner. With her on the
briefs were Patton Dycus and Joshua Smith.
J. Kaplan, Senior Attorney, U.S. Department of Justice,
argued the cause for respondent Environmental Protection
Agency. With him on the brief were Jeffrey Bossert Clark,
Assistant Attorney General, Jonathan D. Brightbill, Deputy
Assistant Attorney General, and Simi Bhat, Attorney.
Blaine Rawson argued the cause for respondent-intervenor
PacifiCorp. With him on the brief were Megan McKay Withroder
and Marie Bradshaw Durrant.
D. Reyes, Attorney General, Office of the Attorney General
for the State of Utah, Tyler R. Green, Solicitor General,
Utah Attorney General, Christian C. Stephens, and Marina V.
Thomas, Assistant Attorneys General, were on the brief for
intervenor State of Utah.
Shannon S. Broome and Charles H. Knauss were on the brief for
amicus curiae Air Permitting Forum in support of respondent
United States Environmental Protection Agency.
Before: Rogers, Tatel and Pillard, Circuit Judges.
ROGERS, CIRCUIT JUDGE:
threshold question the court must decide that is ultimately
dispositive is whether venue is proper in this court pursuant
to Section 307(b)(1) of the Clean Air Act, 42 U.S.C. §
7607(b)(1). Sierra Club filed a petition for the
Administrator of the Environmental Protection Agency to
object to a renewal of an operating permit under Title V of
the Clean Air Act issued by the State of Utah for the Hunter
Power Plant in Emery County, Utah. The renewal permit
incorporated requirements in a preconstruction permit under
Title I that the Hunter Power Plant obtained in 1997. Based
on a new interpretation of his obligations under Title V, the
Administrator denied the petition for objection without
examining the merits of Sierra Club's claim. Sierra Club
seeks vacatur and remand. Because the Order denying the
petition for objection is neither a nationally applicable
regulation nor determined by the Administrator to have
nationwide scope or effect, venue is not proper in this
court. Accordingly, we must dismiss the petition for review.
of the Clean Air Act requires certain stationary sources of
air pollution to obtain operating permits. 42 U.S.C. §
7661b. The permit must include enforceable emissions
standards and other conditions as necessary to assure
compliance with the Clean Air Act's "applicable
requirements" for air pollution prevention and control.
Id. § 7661c(a). EPA regulations implementing
Title V define "applicable requirements" to include
the terms and conditions of Title I preconstruction permits,
which must be obtained prior to the construction or
modification of certain air pollution sources. 40 C.F.R.
§ 70.2; see also 42 U.S.C. §§ 7475,
administer Title V through state implementation plans, which
must be approved by EPA. Id. § 7661a(d). When
implementing these plans, state permitting authorities must
submit Title V permit applications and proposed permits to
EPA for review. Id. § 7661d(a). If the
Administrator of EPA determines that a proposed permit does
not comply with the applicable requirements, then the
Administrator "shall . . . object to its issuance."
Id. § 7661d(b)(1). If the Administrator does
not object within 45 days of receiving a proposed permit,
then "any person" may petition the Administrator to
object. Id. § 7661d(b)(2). The Administrator of
EPA must grant or deny the petition within 60 days, and he
must object to the issuance of the proposed permit if the
petition demonstrates that a permit is not in compliance with
applicable requirements. Id. Title V permits must be
renewed every five years. Id. § 7661a(b)(5)(B).
operates the Hunter Power Plant in Emery County, Utah.
Pursuant to the Utah state implementation plan, PacifiCorp is
required to apply for a Title V operating permit for the
Hunter Power Plant. Id. §§ 7661a(a),
7661c(a). PacifiCorp also was required to obtain a Title I
preconstruction permit prior to making various modifications
to the Hunter Power Plant in the late 1990s. Id.
§ 7410(a)(2)(c). On December 18, 1997, PacifiCorp
obtained a preconstruction permit for the Hunter Power Plant
under Utah's EPA-approved Title I preconstruction permit
program. The Utah Department of Environmental Quality,
Division of Air Quality ("Utah Department") found
that the upcoming modifications would not raise the Hunter
Power Plant's emissions levels because the Plant was
placing enforceable limits on its potential to emit.
Therefore, the planned construction projects were not
classified as major ...