PATRICK E. HIGGINBOTHAM, Circuit Judge:
The Louisiana Department of Environmental Quality ("LDEQ") petitions for judicial review of an Environmental Protection Agency objection to three title V permits issued by LDEQ to Nucor Steel Louisiana ("Nucor"). We dismiss the petition because we lack subject matter jurisdiction.
Title V of the Clean Air Act ("CAA") establishes an operating permit program to assure compliance with the CAA's requirements during a facility's ongoing operation.
Title V, specifically 42 U.S.C. § 7661d, provides a mechanism for EPA review of title V permits. This dispute arises out of that review process. State permitting authorities must submit each proposed title V operating permit to the EPA for review.
Title V also authorizes judicial review of the Administrator's decision to grant or deny a petition. If the Administrator denies the petition, that denial is subject to judicial review.
LDEQ's request for judicial review concerns an EPA objection to three title V permits issued by LDEQ to Nucor for an ironmaking facility near the town of Convent, Louisiana. The proposed facility included a pig iron manufacturing process and a direct reduced iron ("DRI") manufacturing process. LDEQ issued a separate title V permit for each process. What transpired during LDEQ's permitting process is undisputed.
On May 24, 2010, LDEQ issued a title V permit to Nucor for the pig iron process. On June 25, 2010, Zen-Noh Grain Corporation ("Zen-Noh"), which operates a grain export facility adjacent to Nucor's planned facility, filed a petition with the EPA, requesting, in relevant part, that the Administrator object to the title V permit issued by LDEQ.
On January 27, 2011, LDEQ issued a modified title V permit for the pig iron process, incorporating modifications requested by Nucor, as well as a title V permit for the DRI process. On May 3, 2011, Zen-Noh filed a second petition with the EPA requesting the Administrator object to the modified title V permit for the pig iron process and to the title V permit for the DRI process.
On March 23, 2012, almost twenty-one months after Zen-Noh filed its first petition and over ten months after it filed its second petition, the EPA issued an objection to each of the three title V permits ("the Objection"). On June 21, 2012, LDEQ responded to the Objection. On June 22, 2012, LDEQ petitioned this Court for judicial review of the Objection. In its petition for judicial review, LDEQ requests that this Court (1) vacate the Objection and (2) issue a declaratory ruling that the Objection was improper for a variety of reasons. This Court granted Nucor's motion to intervene on July 16, 2012.
Because we lack subject matter jurisdiction, we must dismiss LDEQ's petition for judicial review. We "review questions of subject matter jurisdiction de novo."
The Administrative Procedure Act, specifically 5 U.S.C. § 702, contains a general waiver of sovereign immunity for federal court actions "seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity under color of legal authority."
LDEQ and Nucor's counter-arguments fail to persuade. They first argue that, because the EPA failed to object during § 7661d(b)(2)'s 60-day window for granting or denying a petition, § 7661d(c)'s limitation on judicial review does not apply. Nucor offers no support for that interpretation of § 7661d(b)(2), other than legislative history indicating that Congress intended the title V petition process to be timely, and its argument ignores the plain language of § 7661d(b)(2). Section 7661d(b)(2) does not prohibit the EPA from issuing an objection after the 60-day window has expired, and § 7661d(c) does not distinguish between timely and late objections in defining the point at which judicial review may be sought. Nor did Congress provide a remedy for an untimely objection. In such cases, courts are not to supply loss of jurisdiction as a consequence of a late objection.
LDEQ and Nucor next argue that the Objection is not an "objection" within the meaning of § 7661d and therefore not subject to § 7661d(c)'s requirement that the Administrator take final action to issue or deny a permit before it can be subject to judicial review. LDEQ and Nucor point to no text supporting the distinction they attempt to draw, nor do they provide any workable rule for determining what constitutes an actual "objection." They essentially argue that because the Objection is improper, it is not an actual objection and is therefore subject to judicial review. But that same argument would apply in any
We hold that this Court lacks subject matter jurisdiction to review the Objection, but we do not determine whether LDEQ and Nucor may pursue other avenues of judicial review, such as an action in district court under 42 U.S.C. § 7604(a)(2). We conclude that review in this forum is not proper until the Administrator takes final action issuing or denying a permit.
LDEQ's petition for judicial review is DISMISSED for lack of jurisdiction.