ELR Citation: ELR 20224
No(s). s. 03-40846(L), -40848(CON) (2d Cir. Oct 24, 2005)

The court upholds in part and vacates in part the U.S. Environmental Protection Agency's (EPA's) decision not to object to operating permits issued to coal-fired power generation plants in New York. The New York environmental agency's prior determinations that the plants were in violation of the Clean Air Act (CAA) provided sufficient demonstration of noncompliance to trigger EPA's obligation to object to the plants' operating permits under the Title V permit review process. And because the state's issuance of the notices of violation manifested a prior finding of noncompliance, EPA should not have issued an operating permit without a compliance schedule. As for the plants' deviations from the permits, EPA acted reasonably, under the CAA's prompt reporting requirement, in approving the permits' quarterly reporting of deviations for nitrogen oxide and sulfur dioxide emissions. But the Agency's interpretation that "prompt" means "quarterly" for opacity violations and "every six months" for all other emission deviations was unreasonable. And a consent decree between the plants and the state agency did not render moot EPA's errors in the permit approval process.