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United States v. Southern Ind. Gas & Elec. Co.

ELR Citation: 32 ELR 20821
Nos. No. IP 99-1962-C-M/S, (S.D. Ind., 07/18/2002)

The court holds that a gas and electric company violated the Clean Air Act (CAA) by failing to obtain a preconstruction permit before making modifications to its facility even though there were no actual increases in emissions of pollutants after the changes were made. Based on the CAA and its implementing regulations, owners and operators are required—before commencing construction—to project or predict the post-project emissions rate to determine whether a permit is required. In addition, the U.S. Environmental Protection Agency is authorized under the CAA to take such measures as necessary to prevent the construction or modification of a nonconforming facility. In its motion for partial summary judgment, the company argued that it was exempt from the preconstruction permitting requirement because there was no post-project increase in actual emissions at its facility. The court first holds that because the Act specifically contemplates that an enforcement action to prevent construction may be brought before the modification of a facility is complete, Congress must have intended the determination in such an action to be based on projections of emissions increases. Any other construction of the CAA and its regulations would turn the preconstruction permitting program on its head and would allow sources to begin construction without a permit while they wait to see if emissions would actually increase. Thus, whether the company's project required a preconstruction permit must be determined by reviewing evidence of the projected post-project emissions increases, not by reviewing evidence of the actual post-project emissions data. The company's motion for summary judgment was therefore denied.

Counsel for Plaintiff
Steven D. Ellis
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Thomas E. Kieper
U.S. Attorney's Office
10 W. Market St., Ste. 2100, Indianapolis IN 46201
(317) 226-6333

McKinney, J.