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Diné Care v. United States Environmental Protection Agency

ELR Citation: 43 ELR 20269
Nos. 12-03987, (E.D. Cal., 12/03/2013) (White, J.)

A district court dismissed Native American and environmental groups' CAA citizen suit asking the court to order EPA to issue a final rule that establishes best available retrofit technology (BART) for the Navajo Generating Station, a coal-fired power plant in northern Arizona near the Grand Canyon. The groups alleged that EPA's finding in 2007 that the Station was eligible for and subject to BART requirements was tantamount to its finding that it was both necessary and appropriate to promulgate BART determinations without unreasonable delay under 40 C.F.R. §49.11, which governs EPA's authority to adopt federal plans for tribal lands. But EPA's stipulation that the Station was eligible for BART did not trigger §49.11. EPA's 2007 finding was not a formal determination that BART implementation was necessary and appropriate. Such a formal determination must follow a thorough notice-and-comment process. Only after such a formal process has been completed does the plan itself have to be promulgated without reasonable delay. Moreover, EPA does not have the authority to treat the tribe as it would a state for purposes of BART determination for the Station since the Navajo Tribe has made no formal request for a determination of such eligibility. The court, therefore, lacked subject matter jurisdiction.