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United States v. Louisiana Pac. Corp.

ELR Citation: 18 ELR 20912
Nos. No. 86-A-1880, 682 F. Supp. 1141/27 ERC 1621/(D. Colo., 03/22/1988) Civil penalty assessed

The court holds that a wood processing plant has violated the Clean Air Act's prevention of significant deterioration (PSD) program, and assesses a civil penalty of $65,000. The court first holds that Clean Air Act §113(a)(1)'s requirement for 30-day notice before the Environmental Protection Agency (EPA) files a civil enforcement action is satisfied if the source commits the alleged violation anytime after the 30-day period has run. The court holds that the term "potential to emit" in Clean Air Act §169(1) means the maximum emissions a source can generate when being operated within the constraints of its design. Implementing regulations at 40 C.F.R. §52.21(b)(4) indicate that the source must be operated in the manner in which it was designed to operate. Moreover, the source must be operated in ways that might occur under normal operations. Hypothesizing the worst possible operation is the wrong way to calculate potential to emit. Restrictions on source operations, contained in state permits issued under an EPA-approved plan, are federally enforceable, and hence must be considered in calculating potential to emit air pollutants. The most restrictive such limit is applicable. However, where such limits are knowingly and regularly violated, they may not be used to calculate a lower potential to emit air pollutants.

In assessing a civil penalty of $65,000, the court considers as mitigating factors the perplexing regulatory framework of the Clean Air Act, including its lack of a provision for a source which only discovers a PSD permit is needed after construction is completed, the permit was already required, the installation of the most effective control equipment available, lack of evidence of environmental harm, and lack of economic benefit to the violator. The court considers as aggravating factors the knowing violation of annual production limits contained in state permits; an inaccurate estimate of future potential to emit must carry some penalty in order to lead to estimates that are as accurate as possible; and permits must be received, not just applied for, before operations are authorized. The court declines to issue injunctive relief, since an injunction in this case would merely be a broadly worded order to obey the law.

[An earlier opinion in this case appears at 18 ELR 20350.]

Counsel for Plaintiff
Daniel S. Maus, Ass't U.S. Attorney
Suite 1200, Fed'l Bldg., Drawer 3615, 1961 Stout St., Denver CO 80294
(303) 844-2081

Counsel for Defendant
William A. Hillhouse II
Davis, Graham & Stubbs
Suite 4700, 370 17th St., P.O. Box 185, Denver CO 80201-0185
(303) 892-9400