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Louisiana Department of Environmental Quality v. United States Environmental Protection Agency

United States Court of Appeals, Fifth Circuit

September 13, 2013

LOUISIANA DEPARTMENT OF ENVIRONMENTAL QUALITY, Petitioner
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent

REVISED September 17, 2013

Petition for Review of an Order of the Environmental Protection Agency

Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The Louisiana Department of Environmental Quality ("LDEQ") petitions for judicial review of an Environmental Protection Agency objection to three title V permits issued by LDEQ to Nucor Steel Louisiana ("Nucor"). We dismiss the petition because we lack subject matter jurisdiction.

I.

Title V of the Clean Air Act ("CAA") establishes an operating permit program to assure compliance with the CAA's requirements during a facility's ongoing operation.[1] Title V operating permits set forth emissions limitations, standards, monitoring requirements, compliance schedules, and other conditions necessary to assure compliance with the requirements of the CAA.[2] Congress designed the title V permit program to be administered and enforced primarily by state and local air permitting authorities.[3] Each state must develop and submit to the EPA for approval a "permit program" designed to meet the requirements of title V of the CAA and its implementing regulations.[4] Under Louisiana's current permitting system, a facility must submit an application for a title V operating permit before commencing construction.[5]

Title V, specifically 42 U.S.C. § 7661d, provides a mechanism for EPA review of title V permits. This dispute arises out of that review process. State permitting authorities must submit each proposed title V operating permit to the EPA for review.[6] The EPA Administrator must object to the issuance of any permit "not in compliance with the applicable requirements of this chapter" within 45 days after receiving a copy of the proposed permit.[7] If the EPA Administrator does not object in writing during that 45-day review period, any person may, within 60 days after the expiration of the 45-day review period, petition the Administrator to object.[8] "The Administrator shall issue an objection . . . if the petitioner demonstrates to the Administrator that the permit is not in compliance with the requirements of [the CAA]."[9] Section 7661d(b)(2) requires that "[t]he Administrator shall grant or deny such petition within 60 days after the petition is filed."[10]

Title V also authorizes judicial review of the Administrator's decision to grant or deny a petition. If the Administrator denies the petition, that denial is subject to judicial review.[11] However, if the Administrator grants the petition and issues an objection, § 7661d(c) provides that "[n]o objection shall be subject to judicial review until the Administrator takes final action to issue or deny a permit under this subsection."[12]

II.

LDEQ's requestfor judicial reviewconcerns an EPA objectionto three title V permits issued by LDEQ to Nucor for an ironmaking facility near the town of Convent, Louisiana. The proposed facility included a pig iron manufacturing process and a direct reduced iron ("DRI") manufacturing process. LDEQ issued a separate title V permit for each process. What transpired during LDEQ's permitting process is undisputed.

On May 24, 2010, LDEQ issued a title V permit to Nucor for the pig iron process. On June 25, 2010, Zen-Noh Grain Corporation ("Zen-Noh"), which operates a grain export facility adjacent to Nucor's planned facility, filed a petition with the EPA, requesting, in relevant part, that the Administrator object to the title V permit issued by LDEQ.[13] On November 19, 2010, after the Administrator failed to grant or deny Zen-Noh's first petition within 60 days after it was filed, as required by § 7661d(b)(2), Zen-Noh filed suit against the EPA in the Eastern District of Louisiana, seeking to compel the EPA to take action with respect to the petition. In settlement of Zen-Noh's suit, EPA agreed that by March 16, 2012, it would issue an order or orders responding to Zen-Noh's petitions, to the extent that such a response was required under § 7661d(b)(2).

On January 27, 2011, LDEQ issued a modified title V permit for the pig iron process, incorporating modifications requested by Nucor, as well as a title V permit for the DRI process. On May 3, 2011, Zen-Noh filed a second petition with the EPA requesting the Administrator object to the modified title V permit for the pig iron process and to the title V permit for the DRI process.[14]

On March 23, 2012, almost twenty-one months after Zen-Noh filed its first petition and over ten months after it filed its second petition, the EPA issued an objection to each of the three title V permits ("the Objection"). On June 21, 2012, LDEQ responded to the Objection. On June 22, 2012, LDEQ petitioned this Court for judicial review of the Objection. In its petition for judicial review, LDEQ requests that this Court (1) vacate the Objection and (2) issue a declaratory ruling that ...


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