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Luminant Generation Co., L.L.C. v. United States Environmental Protection Agency

United States Court of Appeals, Fifth Circuit

July 3, 2014

LUMINANT GENERATION COMPANY, L.L.C.; ENERGY FUTURE HOLDINGS CORPORATION, Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, Administrator, United States Environmental Protection Agency, Respondents. LUMINANT GENERATION COMPANY, L.L.C.; BIG BROWN POWER COMPANY, L.L.C., Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, Administrator, United States Environmental Protection Agency, Respondents

Petitions for Review of Notices of the Environmental Protection Agency.

For Luminant Generation Company, L.L.C., Energy Future Holdings Corporation, Petitioners (12-60694): Philip Stephen Gidiere III, Esq., Thomas Lee Casey III, Attorney, Carl Grady Moore III, Balch & Bingham, L.L.P., Birmingham, AL; Clinton Frederick Beckner III, Peter D. Keisler, Esq., Sidley Austin, L.L.P., Washington, DC.

For United States Environmental Protection Agency, GINA MCCARTHY, Administrator, United States Environmental Protection Agency, (12-60694, 13-60538), Respondents: Andrew J. Doyle, Trial Attorney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC; Brenda Mallory, Environmental Protection Agency, Washington, DC.

For State of Texas, (12-60694, 13-60538), Amicus Curiae: Linda B. Secord, Assistant Attorney General, Office of the Attorney General, Environmental Protection & Administrative Law Division, Austin, TX.

For Sierra Club, (12-60694, 13-60538), Amicus Curiae: Elena Kathryn Saxonhouse, National Headquarters, San Francisco, CA.

For Luminant Generation Company, L.L.C., Big Brown Power Company, L.L.C., Petitioners (13-60538): Philip Stephen Gidiere III, Esq., Thomas Lee Casey III, Attorney, Balch & Bingham, L.L.P., Carl Grady Moore III, Birmingham, AL; Clinton Frederick Beckner III, Lisa Elizabeth Jones, Peter D. Keisler, Esq., Sidley Austin, L.L.P., Washington, DC; Stephanie Zapata Moore, Luminant, Dallas, TX.

For GINA MCCARTHY, Administrator, United States Environmental Protection Agency, Respondent (13-60538): Andrew J. Doyle, Trial Attorney, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC.

Before SMITH, WIENER, and PRADO, Circuit Judges.

OPINION

Page 440

JERRY E. SMITH, Circuit Judge:

The operators of two power plants filed petitions challenging the legal sufficiency of the notice of violation issued by the Environmental Protection Agency (" EPA" ) under Section 7413(a) of the Clean Air Act. The EPA filed a second, amended notice of violation and moved to dismiss the petitions for want of jurisdiction. The operators challenged the sufficiency of the second notice. Because the notices were not " final actions" of the EPA, we dismiss the petitions for lack of subject-matter jurisdiction.

I.

Luminant Generation Company, L.L.C. (" Luminant" ), owns and operates the Martin Lake Power Plant and operates the Big Brown Power Plant owned by Big Brown Power Company LLC (" Big Brown" ). Energy Future Holdings Company (" EFH" ) is the ultimate corporate parent of Luminant and Big Brown. Both plants have multiple coal-fired units, each connected to turbine generators. Each plant operates pursuant to a Title V permit issued by the State of Texas and approved by the EPA.

In June 2008, the EPA began sending Luminant requests under 42 U.S.C. ยง 7414(a) to determine compliance with the Clean Air Act and its implementing regulations. In July 2012, the EPA issued a section 7413(a) notice of violation (" 2012 NOV" ) to Luminant and EFH claiming that (a) during scheduled outages from 2005 to 2010, Luminant completed substantial capital projects at the Martin Lake and Big Brown Power Plants; (b) the projects involved physical or operational changes to certain emission units; and (c) the changes increased emissions of sulfur dioxide and nitrogen dioxide. The EPA asserted that, as a result of that activity, Luminant and EFH violated (1) the Act's Prevention of Significant Deterioration ...


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