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United States v. Painesville, City of

ELR Citation: 11 ELR 20630
Nos. No. 78-3551, 644 F.2d 1186/15 ERC 1849/(6th Cir., 03/26/1981) Aff'd

The court affirms a district court determination that a boiler installed by the appellant municipal uility is a "new source" under §111(a)(2) of the Clean Air Act and therefore is subject to new source performance standards (NSPS) promulgated under the Act. The utility executed a purchase contract for the boiler nearly a year after the Environmental Protection Agency (EPA) published NSPS for coal-fired steam generators. The sulfur dioxide standard, however, was judicially ordered to be reconsidered, a process which was not concluded until four years later. The court holds that the reference date for determining "new source" status is the date of first publication of standards applicable to the source, regardless of subsequent litigation concerning those standards. It also approves EPA's interpretation of the statutory term of "commencement" of construction of a source as including the execution of a purchase contract for the affected facility, rather than, as defendant argued, preliminary planning. The court up-holds an injunction against the utility's emission of sulfur dioxide in excess of EPA's new source preformance standards. The court further concludes that a hearing to determine the existence of irreparable injury and inadequacy of legal remedies is not necessary to support an injunction under §113(b) of the Act.

Counsel for Appellee
James R. Williams, U.S. Attorney
400 U.S. Cthse., Cleveland OH 44114
(216) 522-4396

Michael P. Carlton, Lawrence A. Hammond, Larry G. Gutterridge, Robert L. Klarquist; James W. Moorman, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5286

Counsel for Appellant
Van Carson
Squire, Sanders & Dempsey
1800 Union Commerce Bldg., Cleveland OH 44115
(216) 696-9200

Charles E. Cannon
Cannon, Stern, Aveni & Krivok Co., L.P.A.
Milburn Bldg., 41 E. Erie St., Painesville OH 44077
(216) 357-5537

Before: KEITH and BROWN, Circuit Judges; WISEMAN, District Judge.*