Jump to Navigation
Jump to Content

United States v. Louisiana Pac. Corp.

ELR Citation: 18 ELR 20350
Nos. No. 86-A-1880, 682 F. Supp. 1122/27 ERC 1605/(D. Colo., 10/30/1987) Motions for summary judgment

The court holds that defendant's construction of a plant on the site of an existing source was not a major modification requiring a prevention of significant deterioration (PSD) permit under the Clean Air Act since the existing source identified by the Environmental Protection Agency (EPA) in its notice of violation (NOV) no longer existed, but defendant's new plants may themselves be major stationary sources subject to the PSD requirements. The court first holds that defendant's construction of a plant to produce a plywood substitute on a site where a major source already existed was not a major modification to an existing source requiring a PSD permit, since the existing source had been dismantled before EPA issued its NOV. EPA may bring an enforcement action under Clean Air Act §113(b)(2) only if it issues an NOV to the alleged offender and the specific violation alleged continues for 30 days after issuance of the NOV. Since a major source must be in existence before any change resulting in increased emissions can be a modification, defendant's plant could not have been in violation on the date the NOV was issued or for 30 days thereafter.

The court holds that defendant's two new plants may be major stationary sources subject to the PSD regulations due to their potential to emit more than 250 tons per year of air pollutants, despite conditions in defendant's state permits limiting each plant's emissions to well below that level. The state permits did not exist when the alleged violations occurred. The state permits do not preclude EPA from bringing suit under Clean Air Act §113(b)(2), since they have been revoked and modified since the NOVs were issued. Further, restriction on emissions in the state permits may not be considered in determining a source's potential to emit. The court rules that while the effect of pollution control equipment, restrictions on hours of operation, and limitations on the amount of materials combusted or produced may be considered in calculating a source's potential to emit, blanket restrictions on actual emissions may not.

The court declines to rule on summary judgment that defendant's plants were subject to the PSD requirements when construction began, since factual issues remain as to whether the plants had the potential to emit more then 250 tons per year of air pollutants. The court also declines to find that defendant failed to comply with an EPA administrative order directing defendant to submit a PSD permit application for one of its plants, since factual questions exist concerning defendant's defenses. The court refuses to rule on defendant's affirmative defense that the assessment of a monetary penalty against it would be unfair since the preconstruction review performed by Colorado failed to indicate the PSD program applied to its plants. The court dismisses defendant's affirmative defense of laches, which may not be asserted against the United States when acting to enforce and protect the public interest in a clean environment. The court also dismisses defendant's estoppel defenses. Although EPA had determined that the PSD program did not apply to a similar plant proposed by defendant, the alleged violation at one of the plants in this case occurred before this determination. While there is some evidence of detrimental reliance by defendant at the other plant, EPA's determination does not constitute affirmative misconduct.

Counsel for Plaintiff
Daniel S. Maus, Ass't U.S. Attorney
1200 Federal Bldg., Denver CO 80294
(303) 844-2081

Teresa N. Lukas, Ass't Regional Counsel
U.S Environmental Protection Agency
One Denver Place, 999 18th St., Suite 500, Denver CO 80202
(303) 293-1603

Counsel for Defendant
William A. Hillhouse II, Zach C. Miller, Felicity Hannay
Davis, Graham & Stubbs
370 17th St., Suite 4700, Denver CO 80201-0185
(303) 892-9400