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

ELR Citation: 26 ELR 20843
Nos. No. 94-CV-3048, 911 F. Supp. 863/41 ERC 2064/(E.D. Pa., 01/08/1996) on reconsideration

On reconsideration, the court holds that the owner and operator of a municipal solid waste landfill did not violate the Clean Air Act (CAA) by constructing and operating the landfill without obtaining a Part D permit. The landfill owner obtained a solid waste permit from the Pennsylvania Department of Environmental Resources (PADER) that required it to install a gas management system, but did not require it to obtain a Part D permit. Based on these facts, the court previously held that the landfill was a major source subject to the U.S. Environmental Protection Agency's (EPA's) CAA Part D permitting requirements because it had the potential to emit volatile organic compounds (VOCs) in excess of the 50 tons-per-year threshold established in the Pennsylvania state implementation plan (SIP). Pursuant to EPA's definition of "potential to emit" at 40 C.F.R. §51.165(a)(1)(iii), the court considered only federally enforceable emissions limits, and not the gas management system, in determining that the landfill was a major source. But six days before the court ruled, the D.C. Circuit vacated EPA's definition of "potential to emit" in Chemical Manufacturer's Ass'n v. U.S. Environmental Protection Agency, 70 F.3d 637 (Sept. 15, 1995) (table decision).

The court first holds that it has jurisdiction to resolve the claim. Since plaintiffs contend that the landfill owner constructed the landfill without the required Part D permit, their case falls squarely within CAA §304(a)(3)'s express authorization of citizen suits against persons who construct major facilities without the proper Part D permit. State courts are not the exclusive forums to enforce a permit requirement when no permit has been issued. Further, PADER's determination that a Part D permit was not required does not render the state court system the only place for plaintiffs to redress their grievances. Section 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 the two individual plaintiffs do not have standing. They offer no evidence regarding the magnitude of the diminished air quality they allege nor the specific direct effect, if any, that it will have on their health, environmental, and recreational interests. Thus, they have not set forth facts establishing their injuries with the required degree of specificity. The court next holds that a corporation and its wholly owned subsidiary, which operates an incinerator, have standing. The incinerator owners and the landfill owner compete against each other, and if the landfill illegally escaped regulatory compliance costs while the incinerator incurred such costs, the incinerator owners suffer competitive disadvantage sufficient to constitute economic injury-in-fact. Further, the injury stems directly from the alleged unlawful conduct, and a decision in the incinerator owners' favor would redress their injuries by eliminating any competitive disadvantage. The court next finds that the landfill owner timely filed its motion for reconsideration within 10 days of entry of the court's prior judgment. The court holds that the case is ripe for reconsideration and refuses to delay until EPA reformulates the regulation, because the court cannot be sure when, if ever, EPA will do so. The court next holds that plaintiffs may not use §304(a)(3) to enforce the federal enforceability requirement in the Pennsylvania SIP. Section 304(a)(3) permits only challenges stemming from failure to obtain permits required under Part C or Part D of the CAA. Plaintiffs should have proceeded under §304(a)(1) if they wished to enforce the Pennsylvania SIP in federal court.

The court next holds that the landfill owner did not violate the CAA, because after taking into account the landfill's gas management system, the potential to emit VOCs falls below the 50 tons-per-year threshold. The court notes that National Mining Ass'n v. U.S. Environmental Protection Agency, 25 ELR 21390 (D.C. Cir. 1995), requires emissions controls to be unquestionably and demonstrably effective in order for the court to consider them in evaluating the facility's potential to emit. The court holds that the gas management system meets this standard. Moreover, all the data necessary to compute that the system will effectively limit the VOC emissions to a quantity below the major source threshold existed at the time of construction, when a violation would have occurred. The court holds that the gas management system meets National Mining Ass'n's further requirement that controls must stem from either state, local, or federal regulation in order for them to be taken into account. The state solid waste permit constitutes a regulation required by state law that forces the landfill owner to limit the landfill's emissions to below 50 tons per year. The court next holds that fugitive emissions may not be counted in determining whether landfills are major sources for Part D purposes. CAA §302 and 40 C.F.R. §51.165(a)(1)(iv)(C) establish that fugitive emissions may not be counted unless EPA has first conducted a rulemaking, which EPA has not done. The court next holds that plaintiffs may not now allege violations of § 304(a)(1). Offering these never before asserted allegations at this late point is not only astounding, but also borders on harassment and runs the risk of Rule 11 sanctions. Finally, the court withdraws its prior opinion and grants the landfill owner summary judgment.

Counsel for Plaintiffs
Scott M. Turner
Nixon, Hargrave, Devans & Doyle
1300 Clinton Sq., P.O. Box 1051, Rochester NY 14604
(716) 263-1000

Counsel for Defendant
Henry V. Nickel
Hunton & Williams
2000 Pennsylvania Ave. NW, Ste. 9000, Washington DC 20006
(202) 955-1561