825 F.3d 444
8th Cir.2016Background
- Nucor (two sister companies) challenged Big River Steel’s construction of a new steel mill in Osceola, Arkansas, asserting the facility’s ADEQ-issued combined PSD (preconstruction) and Title V (operating) permit was invalid under the Clean Air Act (CAA).
- Nucor submitted administrative comments, pursued state administrative review before the Arkansas Pollution Control & Ecology Commission, and lost in state court appeals after the Commission affirmed the permit.
- Nucor also petitioned the EPA to object to the Title V permit; the EPA did not respond, and Nucor sued in D.C. to compel EPA action (that suit remains pending).
- Nucor then filed a citizen suit in federal district court under the CAA seeking an injunction to stop construction; the district court dismissed for lack of subject-matter jurisdiction as an impermissible collateral attack on a permit.
- On appeal the Eighth Circuit considered whether citizen-suit provisions (42 U.S.C. § 7604(a)(1) and (a)(3)) authorize preconstruction challenges to allegedly defective permits, and whether Title V review precludes district-court enforcement suits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alleged SIP violations constitute an "emission standard or limitation" under § 7604(a)(1) supporting a citizen suit | Nucor: ADEQ-issued permit violates Arkansas SIP; SIP provisions are enforceable as emission standards hence citizen suit proper | Big River: Nucor alleges one-time permitting failures, not repeated/ongoing violations required by § 7604(a)(1) | Court: § 7604(f)(4) includes SIPs but § 7604(a)(1) requires repeated or ongoing violations; Nucor alleged only one-time permitting claims, so no jurisdiction under (a)(1) |
| Whether § 7604(a)(3) covers construction undertaken with an allegedly defective PSD permit (i.e., allows collateral attack on issued permit) | Nucor: "without a permit" should mean "without a permit that complies with the CAA," so construction under an invalid permit is actionable | Big River: "without a permit" plainly means lacking a permit; collateral attacks on issued permits are improper; remedies exist in state/EPA review processes | Court: Declines to rewrite statute; (a)(3) does not authorize collateral attacks on an issued permit; jurisdiction lacking under (a)(3) |
| Whether the CAA’s PSD requirements are self-executing re: PM2.5 absence in SIP so permit is facially invalid | Nucor: Arkansas SIP lacked updated PM2.5 provisions so ADEQ lacked authority to issue a federally enforceable PSD permit | Big River/Eight Circuit: PSD self-executing only for newly regulated pollutants; PM2.5 here is not newly regulated; SIP deficiencies are addressed via EPA oversight/FIPs, not citizen suits | Court: EPA oversight, not citizen suit, is the proper remedy; court did not treat permit as facially invalid for citizen-suit purposes |
| Whether Title V administrative/review procedures bar Nucor’s district-court PSD claims | Nucor: District suit proper to enjoin construction despite pending EPA petition | Big River: Integrated Title I/Title V permit process provides administrative review and judicial review under § 7607; § 7607(b)(2) precludes district-court enforcement where review could have been obtained | Court: Nucor should use Title V petition/judicial-review route; availability of that review bars district-court citizen-suit claims; dismissal proper |
Key Cases Cited
- General Motors Corp. v. United States, 496 U.S. 530 (overview of CAA cooperative federalism)
- Otter Tail Power Co. v. United States Envtl. Prot. Agency, 615 F.3d 1008 (8th Cir. 2010) (preconstruction/Title V integrated permit challenges are collateral attacks if not raised administratively)
- Save Our Health Org. v. Recomp of Minn., Inc., 37 F.3d 1334 (8th Cir. 1994) (citizen-suit jurisdiction over violations of SIP-based emission standards requires repeated/ongoing violations)
- McEvoy v. IEI Barge Servs., Inc., 622 F.3d 671 (7th Cir. 2010) (interpretation of § 7604(f) and SIP enforcement)
- CleanCOALition v. TXU Power, 536 F.3d 469 (5th Cir. 2008) (declining to treat "without a permit" as permitting collateral attacks on issued permits)
- Texas v. EPA, 726 F.3d 180 (D.C. Cir. 2013) (distinguishing self-executing PSD requirements for newly regulated pollutants)
- Romoland Sch. Dist. v. Inland Empire Energy Ctr., LLC, 548 F.3d 738 (9th Cir. 2008) (integrated permit challenges must follow § 7661–§ 7661f review/judicial-review procedures)
- OnePoint Sols., LLC v. Borchert, 486 F.3d 342 (8th Cir. 2007) (standard of de novo review for jurisdictional determinations)