Appellate Case: 18-9507 Document: 010110411512 Date Filed: 09/22/2020 Page: 1
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`No. 18-9507
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`IN THE UNITED STATES COURT OF APPEALS
`FOR THE TENTH CIRCUIT
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`SIERRA CLUB,
`Petitioner,
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`v.
`UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al.,
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`Respondents.
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`--------------------------------
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`PACIFICORP and STATE OF UTAH,
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`Intervenors - Respondents
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`On Petition for Review of Final Action by the
`United States Environmental Protection Agency
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`PacifiCorp’s Petition for Rehearing by the
`Panel or Rehearing En Banc
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`
`
`E. Blaine Rawson
`Ray Quinney & Nebeker P.C.
`36 South State Street, Suite 1400
`Salt Lake City, UT 84111
`(801) 532-1500
`BRawson@rqn.com
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`Marie Bradshaw Durrant
`PacifiCorp
`1407 North Temple, Suite 310
`Salt Lake City, UT 84116
`(801) 220-4707
`Marie.Durrant@pacificorp.com
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`Attorneys for Intervenor-Respondent PacifiCorp
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`CORPORATE DISCLOSURE STATEMENT
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`Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, PacifiCorp
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`submits the following statement:
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`PacifiCorp’s common stock is 100% owned by PPW Holdings, LLC, a Delaware
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`limited liability company, which is, in turn, wholly owned by Berkshire Hathaway
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`Energy Company. Berkshire Hathaway Energy Company is a majority-owned subsidiary
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`of Berkshire Hathaway, Inc., a publicly held corporation. No publicly held company
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`directly owns ten percent (10%) or more of PacifiCorp’s common stock.
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`ii
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`TABLE OF CONTENTS
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`CORPORATE DISCLOSURE STATEMENT .............................................................................. ii
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`TABLE OF AUTHORITIES ......................................................................................................... iv
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`FEDERAL RULE OF APPELLATE PROCEDURE 35(b) STATEMENT .................................. 1
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`INTRODUCTION .......................................................................................................................... 2
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`BACKGROUND ............................................................................................................................ 3
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`ARGUMENT .................................................................................................................................. 5
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`I.
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`THE DECISION FAILED TO RECONCILE CONFLICTS WITH THE
`APPLICABLE STATUTE OF LIMITATIONS. .................................................... 5
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`A.
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`B.
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`The Decision conflicts with this Court’s five-year statute of
`limitations for NSR permit challenges. ....................................................... 5
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`The Decision creates a problematic loophole. ............................................ 7
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`II.
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`THE DECISION CONFLICTS WITH PRIOR OPINIONS OF BOTH
`THE SUPREME COURT AND THIS COURT ON LACHES. ............................ 8
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`A.
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`B.
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`The Decision conflicts with Jicarilla. ......................................................... 9
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`The Decision doesn’t comply with a Supreme Court laches
`decision. .................................................................................................... 11
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`THE DECISION FAILS TO ANALYZE WHETHER JUDICIAL
`DEFERENCE IS DUE TO EPA’S INTERPRETATION OF A
`STATUTE. ............................................................................................................ 12
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`THE DECISION INCORRECTLY REDEFINES THE SCOPE OF TITLE
`V PERMIT REVIEWS. ........................................................................................ 14
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`III.
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`IV.
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`CONCLUSION ............................................................................................................................. 15
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`iii
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`TABLE OF AUTHORITIES
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`Cases
`Alexander v. Phillips Petroleum Co., 130 F.2d 593 (10th Cir. 1942) ............................................ 9
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`Environmental Integrity Project v. EPA, 969 F.3d 529 (5th Cir. Aug. 13, 2020) .................... 7, 13
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`Hutchinson v. Pfeil, 105 F.3d 562 (10th Cir. 1997) ...................................................................... 10
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`Jicarilla Apache Tribe v. Andrus, 687 F.2d 1324 (10th Cir. 1982) .......................... 8, 9, 10, 11, 12
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`Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014) ................................................. 11
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`SCA Hygiene Prods. Aktiebolag v. Fist Quality Baby Prods., LLC,
`137 S. Ct. 954 (2017) ...................................................................................................... 8, 11, 12
`Sierra Club v. Oklahoma Gas & Electric Co., 816 F.3d 666 (10th Cir. 2016) ................. 6, 7, 8, 11
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`Utility Air Regulatory Group v. EPA, 573 U.S. 302 (2014) ................................................... 14, 15
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`WildEarth Guardians v. Nat'l Park Serv., 703 F.3d 1178 (10th Cir. 2013) ................................. 12
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`Statutes
`§ 7661c(a) ....................................................................................................................................... 2
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`42 U.S.C 7661d(b) .............................................................................................................. 7, 12, 13
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`42 U.S.C. § 7661d(b)(2) ........................................................................................................... 7, 11
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`42 U.S.C. §§ 7661-61f .................................................................................................................... 2
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`42 U.S.C. Chapter 85, Subchapter I ................................................................................................ 3
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`Rules
`40 CFR § 70.1 ........................................................................................................................... 2, 14
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`F.R.A.P. 35...................................................................................................................................... 1
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`F.R.A.P. 40...................................................................................................................................... 1
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`iv
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`FEDERAL RULE OF APPELLATE PROCEDURE 35(b) STATEMENT
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`PacifiCorp petitions this Court for en banc panel review of the attached opinion
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`under F.R.A.P. 35, or if en banc review is not possible, a rehearing by the same panel
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`pursuant to F.R.A.P. 40. En banc review is justified when it is “necessary to secure or
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`maintain uniformity of the court’s decisions” or there is a “question of exceptional
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`importance.” F.R.A.P. 35(a)(1), (2). Both are present here. As explained below, the
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`attached opinion conflicts with Tenth Circuit law regarding statute of limitations, laches,
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`and the appropriate level of deference accorded to federal agency interpretations of
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`statutes. The attached opinion also conflicts with Supreme Court case law and federal
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`regulations regarding the scope and nature of permit review under Title V of the Clean
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`Air Act (“CAA” or “Act”), as well as Supreme Court case law regarding laches.
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`If the Court determines that en banc panel review is not appropriate, then the panel
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`should rehear the issues addressed in this motion under F.R.A.P. 40, which provides for a
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`panel to rehear “point[s] of law or fact that the petitioner believes the court has
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`overlooked or misapprehended.” F.R.A.P. 40(a)(2). This petition for rehearing raises
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`several points of law regarding statute of limitations, laches, deference, and the Title V
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`program under the CAA that PacifiCorp believes the panel overlooked or
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`misapprehended.
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`INTRODUCTION
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`In Case No. 18-9507 Sierra Club petitioned for review of a final order issued by
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`the U.S. Environmental Protection Agency (“EPA”). PacifiCorp and the State of Utah
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`(“State”) intervened in that case on the side of EPA. EPA’s final order (the “Hunter
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`Order”) denied Sierra Club’s Petition to Object to the Title V1 air permit for the Hunter
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`Power Plant (“Hunter”) in Utah (which is majority-owned and operated by PacifiCorp).
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`Sierra Club’s Petition to Object utilized the review of Hunter’s 2016 Title V permit as a
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`loophole to challenge a 1997 state-issued pre-construction permit (issued under Title I of
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`the CAA) that Sierra Club had not previously challenged, despite multiple opportunities
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`to do so. The construction projects approved in the 1997 permit were completed over 20
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`years ago. EPA’s Hunter Order properly rejected Sierra Club’s belated attempt to use a
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`different air permit to dispute the long-issued 1997 pre-construction permit. EPA was
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`justified in issuing the Hunter Order, but unfortunately the panel misapprehended key
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`legal issues and sanctioned Sierra Club’s collateral attack on the 1997 pre-construction
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`permit in its July 2, 2020 decision (“Decision”). PacifiCorp requests rehearing by the
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`panel or en banc.
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`1 Title V of the CAA establishes an “operating permit” program. 42 U.S.C. §§ 7661-61f.
`An operating permit compiles in one document the “applicable requirements” for that
`facility. Id. § 7661c(a). These include state implementation plan requirements,
`applicable federal regulations, and the terms of all existing NSR preconstruction permits.
`Id. Title V permits should not include new substantive requirements. 40 CFR § 70.1.
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`2
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`BACKGROUND
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`In a 1997 air permit application, PacifiCorp “identified numerous boiler projects
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`and turbine upgrades to be completed on each Hunter unit in the 1997 through 1999
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`timeframe.” (JA269; see also JA055–56). The application committed PacifiCorp to new,
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`lower emissions limits to ensure that the 1997-99 projects would not increase emissions
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`to levels exceeding the “major source” threshold and thus trigger a major “New Source
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`Review” (“NSR”) permit. 2 (JA056). Instead, the lower emissions limits allowed Utah to
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`issue a “minor source” NSR permit. Utah properly evaluated the 1997 application under
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`the State’s NSR program (a requirement under the federally-approved state
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`implementation plan (“SIP”)), issued a draft permit for public review, considered all
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`submitted comments, and, on December 18, 1997, issued a final Approval Order (Utah’s
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`term for a state-issued air quality permit) for the 1997-1999 projects. (JA073–102)
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`(“1997 Approval Order”). While Utah law provided for both administrative and judicial
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`review of the 1997 Approval Order, no party, including Sierra Club, filed either an
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`administrative or judicial challenge.
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`The State explained that the 1997 Approval Order was “included as part of a Title
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`V operating permit,” and a “30-day public comment period was held and all comments
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`received were evaluated.” (Id. (emphasis omitted)). The State published a notice of
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`2 “New Source Review” is the CAA permitting program for construction or modification
`of major and minor sources of air pollutants, requiring these sources to obtain pre-
`construction permits under Title I of the CAA, including Parts A (Section 110(a)(2)(c) for
`minor source permitting) and C (Prevention of Significant Deterioration program for
`areas attaining air quality standards). See 42 U.S.C. Chapter 85, Subchapter I.
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`3
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`public comment for both the 1997 Approval Order and the 1998 Title V permit on
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`October 9, 1997 (“1997 Public Notice”). (JA57–062).
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`Hunter’s Title V permit was issued on January 7, 1998 (“1998 Title V Permit”).
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`(JA103–142). The 1998 Title V Permit included, as “applicable requirements,” the
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`emissions limits and other conditions from the 1997 Approval Order that Sierra Club is
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`now challenging. (JA123–125). After a search of the reasonably-available records,
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`PacifiCorp has found no evidence that Sierra Club ever provided public comments
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`regarding, or otherwise administratively or judicially challenged, either the 1997
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`Approval Order or the 1998 Title V Permit.3
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`Utah published a draft Hunter Title V permit renewal for public comment on
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`September 15, 2015. (JA123–125). On November 13, 2015, Sierra Club submitted
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`public comments on the draft permit including, for the first time—16 years after
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`construction—criticisms of the 1997 pre-construction Approval Order. Id.
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`After reviewing and responding to public comments, Utah issued the renewed
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`Title V Permit on March 3, 2016 (“2016 Title V Permit”). (JA198–260). Sierra Club
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`filed a petition to object with EPA on April 11, 2016, claiming it had “timely filed within
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`3 This cannot be definitively confirmed as PacifiCorp employees who worked on this
`matter have long since retired and moved on, and records are sparse or incomplete.
`Regardless, Sierra Club failed to challenge either the 1997 Approval Order or the 1998
`Title V Permit prior to 2015, despite opportunities to do so in 1997, 1998, or through a
`federal enforcement action which was available up until 2003.
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`4
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`60 days of the conclusion of EPA’s review period on February 26, 2016.”4 (“Petition to
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`Object”) (JA261, JA267). EPA denied the Petition to Object. Sierra Club petitioned for
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`review of the Hunter Order in this Court and another Circuit. After the proper venue was
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`determined, this Court proceeded to briefing, oral argument, and eventually the Decision.
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`ARGUMENT
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`This Court should grant PacifiCorp’s petition for panel rehearing or rehearing en
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`banc because the panel’s July 2, 2020 Decision conflicts with decisions of both the
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`United States Supreme Court and this Court, and misapprehends and overlooks key
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`points of law. Specifically, the Decision: (1) conflicts with the statute of limitations
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`applicable to challenging a NSR permit; (2) fails to apply and conflicts with both the
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`Supreme Court’s and this Court’s application of laches; (3) fails to analyze and apply
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`judicial deference to EPA’s interpretation of a federal statute; and (4) incorrectly
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`redefines the scope of Title V permit reviews.
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`I.
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`
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`THE DECISION FAILED TO RECONCILE CONFLICTS WITH THE
`APPLICABLE STATUTE OF LIMITATIONS.
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`A.
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`The Decision conflicts with this Court’s five-year statute of limitations
`for NSR permit challenges.
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`The Decision is incompatible with the statute of limitations this Court has
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`identified for citizen groups to challenge NSR permit decisions. In a case with strikingly
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`similar circumstances, the Sierra Club challenged a power plant’s alleged failure to
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`4 Sierra Club’s Title V Petition to Object seeks review of the “numerous boiler projects
`and turbine upgrades to be completed on each Hunter unit in the 1997 through 1999
`timeframe.” (JA269 (internal footnote omitted)).
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`5
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`obtain a NSR permit before making certain modifications in 2008 to a coal-fired power
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`plant. Sierra Club v. Oklahoma Gas & Electric Co., 816 F.3d 666 (10th Cir. 2016)
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`(“Oklahoma Gas”). In Oklahoma Gas, Sierra Club brought a citizen suit under the
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`enforcement provisions of the CAA, seeking declaratory and injunctive relief, as well as
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`civil penalties. This Court held that a five-year statute of limitations applied to both
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`NSR-related claims for injunctive relief and civil penalties, and found Sierra Club’s
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`claims time-barred. Id. at 671 (“An action seeking civil penalties for failure to obtain a
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`[NSR] permit must be brought ‘within five years from the date when the claim first
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`accrue[s].’ 28 U.S.C. § 2462.”) (italics in original); id. at 676 (“We agree and hold Sierra
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`Club cannot win injunctive or declaratory relief for OG & E’s alleged [NSR] permit
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`violation because its legal remedy based on the same facts is time-barred.”). Important
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`here, this Court also held that the five-year statute of limitation runs from the first day of
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`construction without the required NSR permit: Ҥ 2462 requires that a suit be filed within
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`five years of when a claim first accrues, which in this case was when OG & E
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`commenced modification of the boiler. Because Sierra Club brought suit more than five
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`years after that date, its claim is now time-barred.” Id. at 674.
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`PacifiCorp explained in its brief that adopting the Sierra Club’s position would
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`result in allowing Sierra Club to file its NSR permit-related claims past the five-year
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`statute of limitations. PacifiCorp Brief at 46 (Sierra Club “could have attempted to file
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`an enforcement action within the applicable five-year statute of limitations . . . Instead,
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`Sierra Club sat on its claims for almost 18 years.”), at 50 (“Sierra Club only raises issues
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`6
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`. . . where any statute of limitations on construction-phase activities has run out.”), and at
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`54 (“Permitting Sierra Club to bring claims through Title V almost two decades after the
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`State completes an NSR/PSD analysis” allows “Sierra Club to avoid the statute of
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`limitations for NSR/PSD enforcement actions.”).
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`The panel overlooked the five-year statute of limitations for challenging NSR
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`permit actions in its Decision. Rather, the Decision incorrectly relies on the sixty-day
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`time limit for filing a petition to object to a Title V permit as the only statute of limitation
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`relevant to challenging the 1997 NSR permit.5 Decision at 34. Rehearing should be
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`granted because the Decision conflicts with Oklahoma Gas, and the applicable five-year
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`statute of limitations was either misapprehended or overlooked.
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`B.
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`The Decision creates a problematic loophole.
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`The Decision creates an unsupported and illogical loophole from the limitations
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`period adopted by the Court in Oklahoma Gas. The Decision would require those
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`challenging a NSR permit to do so within five years only if the source didn’t have a Title
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`5 The Fifth Circuit Court of Appeals, which analyzed the same EPA action (the Hunter
`Order) and same Title V program as the Decision, agreed with EPA that the timelines
`imposed by 42 U.S.C. § 7661d(b)(2) are “‘inconsistent with an in-depth and searching
`review of every’ permitting decision regarding a given source.” See Environmental
`Integrity Project v. EPA, 969 F.3d 529, 544 (5th Cir. Aug. 13, 2020)(quoting the Hunter
`Order at 16). The Fifth Circuit further found that “the fact that Title V permits must be
`renewed every five years . . . tends to support the agency’s view that Title V was not
`intended to serve as a vehicle for re-examining the underlying substance of
`preconstruction permits. Subjecting a source’s preconstruction permit to periodic new
`scrutiny, without any changes to the source's pollution output, would be inconsistent with
`Title V’s goal of giving sources more security in their ability to comply with the Act.”
`Id. at 544, 545. While acknowledging the Fifth Circuit’s opinion, the Decision made no
`mention of the Fifth Circuit’s conflicting interpretation of 42 U.S.C 7661d(b). Decision
`at 29-30.
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`7
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`V permit. Conversely, for challenges to NSR permits where the source has a Title V
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`permit, the Decision allows the NSR permit challenger to ignore the five-year statute of
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`limitations (contrary to Oklahoma Gas) and raise the issue in any future Title V permit
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`renewal, which could be 10, 20, or more years after the NSR pre-construction permit was
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`issued, and decades after construction is completed.
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`Applying the Decision to the Sierra Club’s claims in Oklahoma Gas, the Sierra
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`Club now can ignore this Court’s holding in Oklahoma Gas and mount a challenge to
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`OG&E’s same 2008 alleged failure to obtain a NSR permit by raising the issue in the
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`next Title V permit renewal proceeding. Clearly, the Decision creates a “gap” in the
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`applicable five-year statute of limitations for NSR permit challenges where a Title V
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`permit is present. En banc or panel review of this issue is appropriate because the
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`Decision directly conflicts with Oklahoma Gas, and the gap in the five-year statute of
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`limitations created by the Decision was either overlooked or misapprehended.
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`II.
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`THE DECISION CONFLICTS WITH PRIOR OPINIONS OF BOTH THE
`SUPREME COURT AND THIS COURT ON LACHES.
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`While citing both this Court’s decision in Jicarilla Apache Tribe v. Andrus, 687
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`F.2d 1324 (10th Cir. 1982) and the Supreme Court’s decision in SCA Hygiene Prods.
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`Aktiebolag v. Fist Quality Baby Prods., LLC, 137 S. Ct. 954 (2017), the Decision failed
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`to follow the holding of either of those cases.
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`8
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`A.
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`The Decision conflicts with Jicarilla.
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`In Jicarilla, this Court identified the criteria for applying laches in environmental
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`cases. While acknowledging that laches is generally “disfavored” in environmental
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`litigation, the Court nonetheless held that laches provided “a complete bar” to the Jicarilla
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`Apache Tribe’s NEPA challenge based on its failure to assert that challenge for “three-
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`and-one-half to six years.” 687 F.2d at 1337. This Court held that “[t]he question of
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`whether laches bars an action depends on the facts and circumstances of each case,” id. at
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`1338, and identified two “recognized standards” governing the application of laches:
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`(a)
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`(b)
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`unreasonable delay in bringing suit by the party
`against who the defense is asserted and
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`prejudice to the party asserting the defense as a result
`of the delay.
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`Id. This Court explained that laches will serve to bar a claim where “a party, having
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`knowledge of the relevant facts, acquiesces for an unreasonable length of time in the
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`assertion of a right adverse to his own.” Id. (citing Alexander v. Phillips Petroleum Co.,
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`130 F.2d 593, 605 (10th Cir. 1942)).
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`Just as in Jicarilla, Sierra Club’s acquiescence here for an unreasonable length of
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`time resulted in significant prejudice to PacifiCorp. Sierra Club waited 18 years to
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`challenge the 1997 Approval Order – more than three times as long as the delay this
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`Court found sufficient to trigger laches in Jicarilla. Cf. 687 F.2d at 1338. Sierra Club’s
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`objection to the 1997 Approval Order was not raised until 2015 in connection with the
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`Hunter Title V permit renewal (JA198-260), despite the fact that Sierra Club could have
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`challenged the 1997 Approval Order either when it was issued or, assuming Sierra Club’s
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`9
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`interpretation of “applicable requirements” is correct, at the time the 1998 Title V permit
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`was issued by the State, or until 2003 through a CAA enforcement action. See JA103-
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`142.
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`PacifiCorp and, consequently, its ratepayers are significantly prejudiced by Sierra
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`Club’s substantial delay in raising its claims in two ways: first, by spending millions of
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`dollars to complete the “numerous boiler projects and turbine upgrades” approved in the
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`1997 Approval Order which Sierra Club now calls into question (if these claims had been
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`timely raised and litigated, improper equipment and costs (if any) would have been
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`identified and avoided); and second, because those who were involved in, and thus could
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`defend, the 1997-99 projects and permitting process have long since left the company,
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`and the supporting information is likely disposed of, scattered or lost. Forcing PacifiCorp
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`to defend a state regulatory action 23 years after the fact puts it at a great disadvantage
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`because of the loss of information, faded memories, and departed personnel. These are
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`exactly the problems that laches is meant to prevent. See Hutchinson v. Pfeil, 105 F.3d
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`562, 565 (10th Cir. 1997) (“Laches and other defenses designed to bar stale claims
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`recognize the difficulties courts and parties face as time elapses between the litigation
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`and the events at issue. Memories fade; witnesses cannot be located or pass away;
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`documentation becomes inaccessible and more difficult to interpret.”)
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`In short, Jicarilla required the panel to review the “facts and circumstances”
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`related to the two standards for laches, yet it did not do so. Instead, in a case where
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`10
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`laches should at least be considered, the Decision merely cites to Jicarilla, but then fails
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`to apply the legal standards and analysis required by it.
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`B.
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`The Decision doesn’t comply with a Supreme Court laches decision.
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`In SCA Hygiene Prods., the Supreme Court held that laches is a “gap-filling
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`doctrine” and should be applied when such a gap exists. 137 S. Ct. at 961. Citing to the
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`deadline in 42 U.S.C. § 7661d(b)(2) for the filing of a petition to object to a Title V
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`permit, the Decision cites SCA Hygiene Prods. and holds that this deadline “cannot be
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`displaced through laches.” Decision at 34. Unfortunately, the panel misapprehended the
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`statutory timelines to object to a Title V permit as somehow creating a game-changing
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`exception to the five-year statute of limitations for a NSR permit-related challenge. Id. at
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`34-35. As explained above in Section I, this position is incorrect and conflicts with the
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`Tenth Circuit’s Oklahoma Gas decision.
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`Indeed, it is the Decision that creates the “gap” in the statute of limitations that
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`laches needs to fill. As explained above in Section I.B., the Decision allows those
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`challenging NSR permit actions to avoid the five-year statute of limitations by bringing
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`the challenge through the Title V permit process instead of the NSR permit process, and
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`now allows that same pre-construction permit challenge to be raised at any time—18, 25,
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`or even 100 years later—through a Title V permit renewal. This is precisely the type of
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`“gap” which laches is designed to fill. Cf. SCA Hygiene Prods., 137 S. Ct. at 961
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`(quoting Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962, 1973 (2014) (“the
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`11
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`‘principal application’ of laches, ‘was, and remains, to claims of an equitable cast for
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`which the Legislature has provided no fixed time limitation.’”).
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`Because the elements this Court previously identified as justifying laches in
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`environmental cases are conclusively shown in the record, allowing Sierra Club’s
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`challenge to the 1997 Approval Order through Title V diverges from both the Supreme
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`Court’s decision in SCA Hygiene Prods. and this Court’s decision in Jicarilla Apache
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`Tribe. Accordingly, either en banc or panel review is appropriate so that the Decision
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`can be made to conform to binding Supreme Court and Tenth Circuit precedent.
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`III. THE DECISION FAILS TO ANALYZE WHETHER JUDICIAL
`DEFERENCE IS DUE TO EPA’S INTERPRETATION OF A STATUTE.
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`The Decision conflicts with both Supreme Court and Tenth Circuit precedent
`
`
`
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`because the panel adopted its own contrary interpretation of a CAA statute, 42 U.S.C.
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`§ 7661d(b), without determining if Chevron or other judicial deference was due to EPA’s
`
`interpretation of that same statute (which it was). See e.g., WildEarth Guardians v. Nat'l
`
`Park Serv., 703 F.3d 1178, 1188 (10th Cir. 2013) (“As a preliminary matter, the parties
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`and the district court evaluated the NPS’s action under the deferential standard
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`announced in Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc.”).
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`In the Decision, the panel failed to address statutory deference under Chevron and
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`its progeny because it mistakenly claimed that the Hunter Order relied solely on
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`regulatory, and not statutory, interpretation. (Decision at 16-30). While PacifiCorp
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`Appellate Case: 18-9507 Document: 010110411512 Date Filed: 09/22/2020 Page: 17
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`disagrees with this position as a matter of law,6 the greater error is the Decision’s failure
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`to analyze whether EPA’s statutory interpretation of 42 U.S.C. § 7661d(b) should be
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`entitled to judicial deference. In the Hunter Order, EPA interpreted 42 U.S.C. §
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`7661d(b)’s time frames as “inconsistent with an in-depth and searching review of every
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`source-specific preconstruction permitting decision that has previously been made . . . .
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`[T]hese provisions suggest that the EPA’s role in oversight over the issuance of title V
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`permits should be limited.” Hunter Order at 16 (JA016). The Fifth Circuit’s opinion in
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`Environmental Integrity granted judicial deference to this interpretation and included this
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`reasoning as part of the basis of its decision. See Environmental Integrity, 969 F.3d at
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`543-544.
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`Conversely, the panel’s Decision makes no mention of EPA’s interpretation of 42
`
`U.S.C. § 7661d(b) in the Hunter Order, and never analyzes what deference that should be
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`given to that interpretation. Yet the panel relies on that same statute as the statute of
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`limitations for NSR permit challenges brought through Title V. See, e.g., Decision at 34-
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`35. Given EPA’s use of the statute to support the Hunter Order, the panel should have at
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`least considered whether the statutory language is vague and undertaken the Chevron
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`analysis. Instead, with no deference analysis, the Decision applied a conflicting
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`interpretation in the context of the laches analysis. Id. The Court should grant rehearing
`
`
`6 As explained in the State’s Petition for Rehearing, filed concurrently with this Petition,
`the Decision conflicts with the Fifth Circuit’s Environmental Integrity opinion which
`reached an opposite conclusion about the Hunter Order after analyzing the CAA Title V
`statutory scheme. PacifiCorp agrees with, supports, and adopts the arguments raised in
`the State’s Petition.
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`Appellate Case: 18-9507 Document: 010110411512 Date Filed: 09/22/2020 Page: 18
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`en banc or by the panel on this issue because the Decision failed to consider whether
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`deference was required for the agency’s statutory interpretation, a position that is
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`inconsistent with both Supreme Court and Tenth Circuit precedent.
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`IV. THE DECISION INCORRECTLY REDEFINES THE SCOPE OF TITLE V
`PERMIT REVIEWS.
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`After Congress created the Title V operating permit program, EPA adopted rules
`
`
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`explaining the scope and limitations of the Title V program. Specifically, EPA’s Title V
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`regulations recognize that “title V does not impose new substantive requirements.” See
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`40 C.F.R. § 70.1(b) (emphasis added). The Supreme Court reached the identical
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`conclusion in Utility Air Regulatory Group v. EPA, 573 U.S. 302, 309 (2014), stating
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`“Unlike the [Title I] PSD program, Title V generally does not impose any substantive
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`pollution-control requirements.” (Emphasis supplied). Despite the panel’s claims to the
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`contrary (Decision at 21), the Decision approved the use of Title V permit review to do
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`just that: impose “substantive pollution control requirements.”
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`When addressing PacifiCorp’s standing arguments, the Decision admits that a
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`“favorable decision” for Sierra Club could allow EPA (if the requisite conditions are met)
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`to “requir[e] PacifiCorp to use the best available control technology” and force
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`PacifiCorp to further “reduce emissions” through the Title V permit review process.
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`Decision at 11 and 14. In effect, the Decision now sanctions, through the Title V permit
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`process, imposing “substantive pollution-control technology” requirements that the State
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`of Utah already determined were not required through the Title I NSR pre-construction
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`14
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`Appellate Case: 18-9507 Document: