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Cate v. Transcontinental Gas Pipe Line Corp.

ELR Citation: 26 ELR 20621
Nos. No. 95-0014-C, 904 F. Supp. 526/42 ERC 1104/(W.D. Va., 10/13/1995)

Adopting the recommendation of a magistrate, the court holds that owners of property adjacent to a facility that emitted nitrogen dioxide (NO2) may not maintain a Clean Air Act (CAA) citizen suit against the facility for its alleged violations of the national ambient air quality standard (NAAQS) for NO2, Virginia's odor rule, and its agreement with the state department of air pollution control. The owners alleged that the defendant's natural gas pipe line compressor station in Unionville, Virginia, violated both the federal CAA and Virginia state law. The court first addresses the owners' claim that the facility did not comply with the agreement's requirement that it submit a modeling protocol and subsequent abatement plan acceptable to the state. The court notes that the agreement is enforceable under the CAA's citizen suit provision if it (1) fits within one of the definitions of an emission standard or limitation under CAA §304(f) and (2) "is in effect under" the Act. The court holds that the agreement fits within one of the definitions of emission standard or limitation to the extent that it creates a schedule or timetable of compliance. The schedule established under the agreement has as its ends compliance with an emission limitation, other limitation, prohibition, or standard, and not compliance with the NAAQS themselves. The court also holds, however, that the agreement is not in effect under the Act and, therefore, is not enforceable under the CAA citizen suit provision. The schedule of compliance is not in effect under an applicable implementation plan, because it is not included in Virginia's state implementation plan (SIP) and has not otherwise been approved by the U.S. Environmental Protection Agency (EPA). The court next holds that the owners may not directly enforce the NO2 NAAQS against the facility. Section 304 precludes suits to enforce NAAQS directly, because NAAQS are not emission standards or limitations under §304(f)(1). The court holds that Virginia's odor rule also is not federally enforceable in a citizen suit, because it is not in effect under the Act. Virginia did not intend its odor regulations to be included in its SIP, and EPA does not consider state odor rules to be legitimately included in any SIP since those rules do not help accomplish the Act's goals. The court next holds that the applicable Virginia five-year statute of limitations does not bar the owners' state-law nuisance claim. Although actions to recover damages arising from a permanent nuisance are barred by the five-year limitation, the owners have alleged a periodic nuisance, not a permanent nuisance. Finally, the court holds that the owners' nuisance claim does not allege adequately the existence of diversity jurisdiction, because the owners only alleged the jurisdictional amount in the aggregate, without attributing damages of over $50,000 to each plaintiff, as required by law. The court grants plaintiffs leave to amend their complaint to correct the jurisdictional defect.

Counsel for Plaintiffs
Gail S. Marshall
7393 Shooter's Hill Rd., Rapidan VA 23208
(540) 672-3506

Counsel for Defendant
George H. Gromel Jr.
Hunton & Williams
Riverfront Plaza
951 E. Byrd St., Richmond VA 23219
(804) 788-8200