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LaFleur v. Whitman

Citation: 33 ELR 20006
No. No. 01-4126, 300 F.3d 256/(2d Cir., 07/31/2002)

The court denies a petition for review seeking reversal of the U.S. Environmental Protection Agency (EPA) Administrator's decision not to object to a state agency's determination that the heightened permitting requirements of the prevention of significant deterioration (PSD) program do not apply to a proposed solid waste management facility. A company sought a Clean Air Act (CAA) Title V permit to construct and operate a facility that promises to convert municipal waste and sewage sludge into fuel-grade ethanol and carbon dioxide. The state environmental agency concluded that the facility would not be subject to the PSD program because the primary purpose of the facility was municipal solid waste processing, and the emissions from the facility's gasifier and package boiler were not attributable to the chemical processing activities of the facility. EPA ultimately agreed with the state agency's position and individuals petitioned for review, arguing that the EPA Administrator abused her discretion in not objecting to the issuance of the Title V permit. The individuals also brought an Article 78 proceeding against the state agency in state court. That proceeding included a claim that the permit issued by the state agency violated the CAA because it did not apply the PSD program requirements to the facility as a "chemical process plant." The state court rejected this claim and no appeal was taken.

The court first holds that in light of the previous Article 78 proceeding, the doctrine of collateral estoppel bars review. The arguments advanced by the individuals in state court are the same as those they present now as reasons for finding that the Administrator abused her discretion in not objecting to the issuance of the Title V permit. That the Administrator was not a party to the proceeding is irrelevant to the question of whether the individuals were previously afforded a "full and fair opportunity" to litigate the issues presented here. Because they had their day in court on the issue of the applicability of the PSD requirements to the facility, they cannot now gain a further opportunity to litigate this same issue. Regardless of whether collateral estoppel is invoked, however, the court denies the petition for review on the merits. The court could find no reversible error in either the Administrator's determination that the facility's primary activity is waste processing rather than chemical processing, or in its conclusion that the gasifier's emissions should be allocated to that primary activity rather than the embedded chemical process plant. Nor did the Administrator fail to consider other factors that were important to the proper classification of the facility.

Counsel for Petitioners
Kevin C. Murphy
Devorsetz, Stinziano, Gilberti, Heintz & Smith
555 E. Genesee St., Syracuse NY 13202
(315) 442-0100

Counsel for Respondents
Thomas L. Sansonetti
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000