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Sierra Club v. Johnson

ELR Citation: 38 ELR 20224
Nos. No. 0711537, (11th Cir., 09/02/2008)

The Eleventh Circuit held that a violation notice and civil complaint do not, by themselves, inevitably trigger the Enivironmental Protection Agency's (EPA's) duty to object to a Title V operating permit under Clean Air Act §505(b)(2). The court therefore denied a petition to review EPA's decision not to object to a Title V operating permit issued for two coal-fired power plants in Georgia. Title V operating permits are required to contain all applicable clean air requirements. Under §505(b)(2), a petitioner must demonstrate to the EPA Administrator that a permit does not contain a requirement that is applicable to that permit's source. Here, the petitioners only offered evidence that EPA had initiated proceedings to resolve the applicability of prevention of significant deterioration (PSD) requirements to the plants at issue. The permits, however, did not contain PSD-related limits or compliance schedules. Therefore, this evidence, without more, was insufficient to trigger the Administrator's duty to object to the permits because EPA had discretion to reasonably conclude that the applicability of PSD limits to the plants was still very much unresolved.