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United States v. Painesville, City of

ELR Citation: 7 ELR 20221
Nos. No. C76-324, 431 F. Supp. 496/10 ERC 1106/(N.D. Ohio, 01/19/1977)

The court finds an additional coal-fired generating unit at a municipal power plant to be a new stationary source subject to Environmental Protection Agency (EPA) regulations setting standards of performance for such sources under §306 of the Clean Air Act. The Act provides that the standards apply to stationary sources the construction or modification of which was or is commenced after the regulations were proposed, and the regulations themselves specify that "commence" in this context means to undertake a continuous program of construction or modification or enter into a contractual obligation to do so. The court accepts EPA's contention that construction of the unit in question commenced either when actual construction had proceeded to the point where modification of portions of the facility already erected would be required to change the pollution control specifications or when the contract for purchase of the new boiler was signed, both of which occurred after the regulations were proposed. The court grants plaintiff's motion for summary judgment on the issue of defendant's liability for operating the unit in violation of the standards and orders the parties to prepare plans for bringing such operation into compliance.

Counsel for Plaintiff
Alfred T. Ghiorzi, Michael P. Carlson
Pollution Control Section
Department of Justice, Washington DC 20530
(202) 737-8200

Joseph A. Chipolloni, U.S. Attorney
400 U.S. Courthouse, Cleveland OH 44114
(216) 522-4389

Counsel for Defendant
Charles E. Cannon
Cannon, Stern & Aveni
41 E. Erie St., Painesville OH 44077
(216) 357-5537