ELR Citation: ELR 20168
No(s). 09-125 (D. Del. Jul 23, 2009)

A district court dismissed a citizen group's CAA lawsuit against a fossil-fuel-fired power plant for alleged permit, SIP, and new source performance standard violations. The group initiated suit after it concluded that the state environmental agency's negotiated settlement with the power plant did not constitute diligent prosecution of the alleged violations. The relevant test to determine if a state enforcement action qualifies as diligent prosecution is whether the prosecution is "totally unsatisfactory." In addition, the court must presume a state's diligent prosecution of a defendant absent persuasive evidence that the state has engaged in conduct that could be considered dilatory, collusive, or otherwise in bad faith. Based on this standard, the settlement constitutes a diligent prosecution. The fact that the group would have preferred more stringent terms that those negotiated by the agency is immaterial. Accordingly, the group's suit is barred by CAA §304(b)(1)(B).