A federal court in Louisiana has dismissed claims seeking to force the U.S. Environmental Protection Agency (EPA) to terminate a Clean Air Act (CAA) permit to which EPA objected after it had been issued by the state. Zen-Noh Grain Corp. v. Jackson, No. 2:12-cv-02535 (E.D. La. 4/30/13). The Louisiana Department of Environmental Quality (LDEQ) issued CAA permits to a Convent, Louisiana, manufacturer of pig iron and direct reduced iron. EPA objected to the permit on March 23, 2012, but as of the date of the decision, LDEQ had not revoked or modified the permit to conform to EPA’s objections. Plaintiff sued, asserting that, in the absence of state action, EPA had a duty to terminate the permit.
The CAA provides that, if EPA objects to a permit after the state has already issued it and the state fails to terminate or correct the permit, “the Administrator shall modify, terminate, or revoke such permit and the permitting authority may thereafter only issue a revised permit in accordance with” the statute. The court found that because this provision establishes no deadline for EPA action, EPA’s modification, termination or revocation of the permit is a discretionary action. Because it lacked jurisdiction to hear a challenge to a delay or failure to take a discretionary action, the court granted EPA’s motion for summary judgment.