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Sierra Club de Puerto Rico v. Environmental Protection Agency

ELR Citation: 46 ELR 20055
Nos. 14-1138, (D.C. Cir., 03/04/2016)

The D.C. Circuit dismissed environmental groups' lawsuit seeking to vacate an EPA rule that implements the CAA's new source review (NSR) permitting scheme in nonattainment areas. The groups filed suit after EPA issued an energy company a PSD permit to build a waste incinerator in Arecibo, Puerto Rico, a nonattainment area for lead. The groups didn't challenge the permit; rather, the crux of their claim is that lead is dangerous in very small amounts, and there is already too much of it in the air at the proposed incinerator site. The groups argued that the regulatory scheme unreasonably creates a loophole for the incinerator, whose lead emissions will make the nonattainment problem worse. Although EPA issued the rule in 1980, the groups contend that their claim ripened on May 19, 2014, when EPA published notice of the permit. The CAA’s judicial review provision sets a 60-day period for challenges to EPA regulations, with a renewed 60-day period available based on the occurrence of "after-arising grounds." Because the groups filed suit within 60 days after the permit was issued, they claimed their suit was timely because the PSD permit met the "after-arising grounds" exception. But the court disagreed. The groups' asserted injury did not become any more immediate by virtue of the permit. Their claim ripened, if at all, following a 2011 nonattainment designation for lead, when an alleged loophole in the NSR regulations made it possible for projects like the incinerator at issue here to locate in the four-kilometer nonattainment area while emitting up to 100 tons of lead per year. The lawsuit, therefore, is untimely.