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Wildearth Guardians v. United States Environmental Protection Agency

ELR Citation: 43 ELR 20165
Nos. 11-9559, (10th Cir., 07/23/2013)

The Tenth Circuit affirmed an EPA order denying an environmental group's petition to object to a CAA Title V operating permit for a coal-fired power station in Colorado. In its petition for an objection, the group argued that the permit needed to include a plan to bring the power station into compliance with the CAA's prevention of significant deterioration (PSD) requirements. The group claimed that the PSD requirements, which apply to the construction or "major modification" of a stationary source of air pollution, were triggered when the station underwent major modifications in 1994, 1997, and possibly other years. For support, the group relied in part on a notice of violation EPA issued to the power station in 2002. A notice of violation, however, is insufficient to demonstrate noncompliance with the CAA, particularly given the preliminary nature of such notices. Nor did additional evidence submitted by the group demonstrate a violation. EPA's denial of the petition to object, therefore, was not arbitrary or capricious.