The Sierra Club on Sept. 26 filed with a federal court a motion for summary judgment in its Sept. 13 lawsuit against the U.S. Environmental Protection Agency over permitting for the coal-fired Scrubgrass power plant in Pennsylvania.
The lawsuit is being pursued at the U.S. District Court for the District of Columbia. It is over what the club calls a continuing failure to grant or deny the Sierra Club’s May 3 petition to object to a proposed state operating permit issued by the Pennsylvania Department of Environmental Protection (DEP) under Title V of the Clean Air Act for the Scrubgrass Generating Co. LP power plant. The club says the permit violates the Clean Air Act (CAA).
The CAA imposes a non-discretionary duty on the Administrator of the EPA to grant or deny such petitions within sixty days after a petition is filed. On May 3, the Sierra Club submitted its petition, saying the operating permit modification for the Scrubgrass plant issued by DEP impermissibly grants an additional three-year extension of the compliance deadline for certain aspects of the federal Mercury and Air Toxics Standards (MATS).
Said the summary judgment motion: “It is now well beyond sixty days since Sierra Club filed its petition, yet the Administrator has failed to either grant or deny the petition. EPA’s failure to act on Sierra Club’s petition is unlawful. In light of the Administrator’s failure to perform this non-discretionary duty, Plaintiff Sierra Club moves for summary judgment and seeks a declaration that the Administrator has violated the Clean Air Act by failing to perform her non-discretionary duty to grant or deny the petition filed by Sierra Club seeking the Administrator’s objection to the proposed Title V operating permit modification for Scrubgrass. Further, this Motion seeks a mandatory injunction compelling Defendant to perform this mandatory duty by an expeditious date certain, but no later than sixty days from the Court’s ruling on this motion.”
On Jan. 23, DEP published notice of its intent to issue a modification to the Title V operating permit for Scrubgrass, and opened a 30-day public comment period on the proposed permit. The purpose of the proposed modification to the Scrubgrass Title V permit was, among other things, for incorporation of the MATS rule. Sierra Club submitted comments on the proposed modification to Scrubgrass’s Title V operating permit on Feb. 21. DEP submitted Scrubgrass’s proposed Title V permit modification to EPA for review. EPA’s forty-five day review period for the proposed permit ended on March 8.
Scrubgrass is a waste-coal-fired plant with a nameplate rating of 95 MW. It had been granted by the state a one-year extension, to April 2016, for MATS compliance. Scrubgrass then requested an additional three-year extension from DEP, which was also approved. The club says that three-year extension was illegal.