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Ogden Projects, Inc. v. New Morgan Landfill Co.

ELR Citation: 26 ELR 20182
Nos. No. 94-CV-3048, (E.D. Pa., 09/21/1995)

The court holds that an operator of a landfill with the potential to emit enough volatile organic compounds (VOCs) to be classified as a major stationary source under the Clean Air Act (CAA), violated the Act by constructing and operating the landfill without obtaining a CAA Part D permit. A Pennsylvania corporation that owns and operates a municipal solid waste landfill was required under its construction and operation permit to install and operate a gas management system and to obtain approval of the system from the state before commencing construction of the system. The corporation began constructing the landfill and accepting waste for disposal allegedly before obtaining the requisite CAA Part D permit. The court first holds that federal court is the proper forum to resolve the claim that the corporation violated the CAA by not obtaining a Part D permit. State courts are not the exclusive forum to enforce a permit requirement when no permit has been issued, because the CAA expressly provides for federal citizen suits against persons who construct major facilities without a required Part D permit. Moreover, whether to issue a permit is a nondiscretionary act that in this action involves a clear question of federal statutory interpretation that the federal judiciary is competent to address. The court rejects the argument that the state's determination that a Part D permit was not required renders the state court the only place for redress, because CAA §304 does not contain any language conditioning the availability of a federal court citizen suit on the nonexistence of a state agency applicability determination. The court next holds that individual plaintiffs have not established standing to maintain this action, but that the corporate plaintiffs have established standing. The individual plaintiffs did not demonstrate an injury-in-fact, because they offered no evidence regarding the magnitude of the diminished air quality nor the specific direct effect that such diminished air quality will have on their health, environmental, or recreational interests. They failed to set forth facts establishing their injuries with the degree of specificity required. The corporate plaintiffs have standing to maintain the action based on an economic injury. The corporate plaintiffs and defendant corporation are competitors in the solid waste disposal business, and plaintiffs incurred costs of complying with the CAA while the defendant corporation did not. The court next addresses whether the landfill is a major source and, thus, is subject to Part D permitting requirements. A source's potential to emit is determinative in deciding whether it is a major source. In addressing the "major source" issue, the court determines that it must decide whether the landfill's gas management system is a physical limitation on the landfill's potential to emit VOCs or a part of the landfill's physical and operational design. If it is a physical limitation, it must be federally enforceable to be taken into account in assessing the landfill's "potential to emit." The court holds that the gas management system is a physical limitation as opposed to part of the landfill's physical or operational design, because its primary purpose is to dispose of solid waste and, hence, it was designed with this purpose in mind; the gas management system's purpose is to limit landfill emissions and, therefore, it is more readily classified as a physical limitation on the landfill's potential to emit VOCs. This determination is necessary in order to maintain the integrity of EPA's definition of potential to emit. The court notes that as a physical limitation, the system must be federally enforceable in order to be taken into account in assessing the landfill's potential to emit. At the time of construction and this decision, the gas management system is not federally enforceable, and as such its impact on emissions cannot presently be taken into account in assessing the landfill's potential to emit VOCs. At the level at which the parties stipulated the landfill will generate VOCs, and because the gas management system is not federally enforceable, the defendant corporation was required to obtain a CAA Part D permit. Because it did not, it constructed and continues to operate the landfill in violation of the CAA. The court also holds that fugitive emissions from the landfill may not be counted in making the major source determination. The court orders the defendant corporation to continue pursuing a state-issued permit for the system to make it federally enforceable, which will mean that the defendant corporation is not long in violation of the CAA as its potential to emit VOCs will fall below the federal threshold. The court declines, however, to enjoin operation of the landfill or to assess civil penalties against the landfill, because neither EPA nor the state notified the defendant corporation of its need to obtain a CAA permit.

Counsel for Plaintiffs
Michael C. Cohen
Nixon, Hargrave, Devans & Doyle
900 Stewart Ave., Garden City NY 11530
(516) 832-7500

Counsel for Defendant
Eric J. Murdock
Hunton & Williams
2000 Pennsylvania Ave. NW, Washington DC 20036
(202) 955-1500