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Utah ex rel. Utah Department of Environmental Quality v. EPA, 2014 WL 1778143 (10th Cir. May 6, 2014) 

May 1, 2014

The Tenth Circuit dismissed the petition for review of the EPA’s rejection of a revised Clean Air Act plan for lack of jurisdiction. The petitioners failed to file within 60 days of the date the EPA’s action appeared in the Federal Register, as required by statute. This failure was the result of the EPA’s initial failure to alert the parties to the 60-day deadlines, as is its usual practice, which led the EPA to, more than a month later, inform the parties that they would have 60 days from that date to file a petition for review. Relying on this statement, the parties filed their petition within the extended 60-day period, but after the true 60-day period had run. The Tenth Circuit rejected the parties’ (including the EPA) argument that the EPA had, through its statement, implicitly changed the date of its decision. Under its regulations, the EPA’s action is considered the date of publication unless the Administrator otherwise explicitly provides in a promulgation, approval, or action. There was no such explicit change in this case. Although recognizing the inequity to the petitioners created by the application of the jurisdictional bar, the Tenth Circuit held that it cannot expand its jurisdiction to avoid hardships even when they are inequitable.