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26 ELR 20182 | Environmental Law Reporter | copyright © 1995 | All rights reserved Ogden Projects, Inc. v. New Morgan Landfill Co.No. 94-CV-3048 (E.D. Pa. September 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 Counsel for Defendant Van Antwerpen, J.: Plaintiffs instituted this action on May 18, 1994, alleging that Defendant, New Morgan Landfill Company, Inc., constructed and continues to operate a solid waste landfill in Berks County, Pennsylvania, withoutthe requisite Clean Air Act permit. Plaintiffs are proceeding under the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604(a) (1988 & Supp. II 1990), and this Court has jurisdiction over the subject matter pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 7604(a). On April 20, 1995, this Court denied both parties cross-motions for summary judgment without prejudice to the right of the parties to develop a stipulated statement of facts which could be submitted to the Court for a non-jury determination. On June 16, 1995, the parties filed with the Court a Joint Pretrial Stipulation and agreed that the Court should make a non-jury determination of this matter.1 The Joint Pretrial Stipulation sets forth "Matters Which the Parties Agree Are Facts for Purposes of the Determination of this Action," as well as "Uncontroverted Assertions of Fact," on numerous subjects pertinent to this case.2 Given that the June 16, 1995 Joint Pretrial Stipulation sets forth the facts at length, a brief summation will suffice for present purposes. Defendant, New Morgan Landfill Company, Inc., is a Pennsylvania corporation that owns and operates the Morgantown Landfill, a municipal solid waste landfill located in Berks County, Pennsylvania. Stip. at PP4, 5. In November, 1987, Defendant filed an application with the Pennsylvania Department of Environmental Resources ("PADER") for a permit to construct and operate the Morgantown Landfill and on June 24, 1992, PADER's Bureau of Waste Management issued to Defendant the requested solid waste permit. Id. at PP47, 62. This permit did not require Defendant to obtain a Clean Air Act Part D permit as a condition to the authorization to construct the landfill. Id. at P65. The permit did, however, require Defendant to install and operate a gas management system. Id. at P64. In addition, it required that Defendant obtain approval for the gas management system from PADER's air quality program prior to commencing construction of the system. Id. at P66. On February 15, 1995, Defendant submitted an Air Quality Permit Application to PADER for the gas management system. Id. at P71. On August 9, 1995, Defendant resubmitted a revised air quality permit application to PADER. See Defendant's Trial Brief, Exhibit A. This permit application is presently pending before PADER. Defendant commenced construction of the landfill in November, [26 ELR 20183] 1992, and began accepting waste for disposal on January 6, 1994. Stip. at P69. On May 18, 1994, Plaintiffs instituted the present action asserting that Defendant constructed the Morgantown Landfill without obtaining the requisite Clean Air Act permits. Plaintiff Ogden Projects Inc. ("OPI") is a Delaware corporation which through its wholly owned subsidiaries constructs, owns, and operates "resource recovery facilities." Id. at P11, 12. Commonly referred to as garbage incinerators, these facilities dispose of municipal solid waste through combustion. Id. at P13. Plaintiff Ogden Martin Systems of Lancaster Inc. ("OMSL"), a wholly owned subsidiary of OPI, operates a resource recovery facility in Lancaster County, PA, approximately 35 miles from the Morgantown Landfill. Id. at PP15, 16, 19. Plaintiff Jeffrey R. Horowitz is a Senior Vice-President and General Counsel for each of the corporate Plaintiffs. Id. at P9. Plaintiff John Snyder is an engineer employed by Ogden Resource Recovery Plant Services, Inc., a firm under contract with OMSL to perform the day-to-day operations of the OMSL facility. Id. at PP6, 20. Plaintiffs ask this Court to issue a declaratory judgment that Defendant has violated and continues to violate Part D of Title I of the Clean Air Act, enjoin further operation of the Landfill until Defendant obtains the proper Clean Air Act permit, order Defendant to pay civil penalties, and award costs to Plaintiffs. Before reaching the substantive dispute, we must first decide (1) whether this Court's jurisdiction may be invoked to collaterally attack PADER's failure to require a Part D permit, and (2) whether Plaintiffs have standing to maintain this action. (1) Subject Matter Jurisdiction This Court is the proper forum to resolve Plaintiffs' claim that Defendant violated the Clean Air Act (CAA) by not obtaining a Part D permit. Defendant contends that because in 1992 PADER issued the solid waste permit without requiring a CAA Part D permit, Plaintiffs may only challenge PADER's decision in Pennsylvania state courts, not through a collateral attack in federal court. Defendant's Trial Brief at 41-42. Defendant's argument fails under the plain meaning of the CAA's citizen suit provision. This provision, section 304 of the CAA, states: Any person may commence a civil action on his own behalf. . .against any person who proposes to construct or constructs any new or modified major emitting facility without a permit required under. . .Part D of subchapter I of this chapter (relating to nonattainment). The CAA expressly authorizes citizen suits against persons who propose to construct or who do construct major facilities without the proper Part D permit. Since Plaintiffs contend that Defendant constructed the Morgantown Landfill without the required Part D permit, their case falls squarely within the statute and this Court has jurisdiction. See American Lung Ass'n of N.J. v. Kean, 670 F. Supp. 1285, 1290 [18 ELR 20036] (D.N.J.), aff'd, 871 F.2d 319, 323-25 [19 ELR 20759] (3d Cir. 1989); League to Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1173 [9 ELR 20598] (9th Cir.), cert. denied, 444 U.S. 943 (1979). Furthermore, "where the language of the statute is clear, only 'the most extraordinary showing of contrary intentions' justifies altering the plain meaning of a statute." Malloy v. Eichler, 860 F.2d 1179, 1183 (3d Cir. 1988) (quoting Garcia v. United States, 469 U.S. 70, 75 (1984)). Defendant cites Trounday in support of its position that PADER's issuance of a solid waste permit without requiring a Part D permit precludes Plaintiffs from pursuing a CAA citizen suit claim in federal court. Defendant's Trial Brief at 45-46. In Trounday, plaintiffs filed a citizen suit under § 304 of the CAA in federal court seeking to enjoin the construction of two hotels. Plaintiffs claimed that Nevada issued preconstruction permits in violation of the provisions in its SIP relating to the attainment and maintenance of ambient air quality standards. Trounday, 598 F.2d at 1173. The plaintiffs asserted that the hotel emissions would violate these air quality standards.3 Id. The Ninth Circuit held that while it had jurisdiction over the case, id., the plaintiffs failed to state a claim for which relief could be granted under CAA § 304(a)(1). Id. at 1174. Given that the Nevada officials complied with all the requirements of the Nevada SIP, the court found that "appellants' challenge to the [permit]. . .should have been pursued through the administrative review procedures set forth as part of the [Nevada SIP]." Id. Based on this, Defendant asserts that state courts are also the exclusive forum to enforce a permit requirement where no permit has been issued. Defendant's Trial Brief at 44-45. We do not agree. The statute expressly provides for federal citizen suits against persons who construct major facilities "without a permit required under. . .Part D." 42 U.S.C. § 7604(a)(3). In addition, a material distinction warrants treating challenges based on the terms and conditions of an actual permit differently than challenges based on the failure to require a permit at all. Setting the terms and conditions of CAA permits is a discretionary function that Congress delegated to the EPA and individual state agencies in acknowledgement of their special expertise and competence. Cf. Trounday, 598 F.2d at 1174 (determining whether proposed source will prevent maintenance of ambient air quality standards is "an administrative decision entrusted by Congress to state officials.") As such, it is appropriate to defer to state law procedures for judicial review of state agency action as well. Whether or not to issue a permit at all, however, is a non-discretionary act. Deference to administrative expertise is not involved as Congress left no room for discretion. The substantive element of the present dispute involves determining whether a gas management system is part of the Defendant's Morgantown Landfill's "physical and operational design" or whether it is a "physical or operational limitation" on the landfill's potential to emit VOCs. This is a clear question of federal statutory interpretation that the federal judiciary is competent to address. Defendant further maintains that PADER's determination that a Part D permit was not required renders the Pennsylvania state court system the only place for Plaintiffs to redress their grievances. Defendant's Trial Brief at 47-52. This also is incorrect. Defendant has no basis for reading such a qualification into the statute. 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. Our reading of section 304 is consonant with judicial interpretation of the Clean Water Act's similar citizen suit provision.4 In Committee to Save the Mokelumne River v. East Bay Municipal Utility District, 1993 U.S. Dist. LEXIS 8364 (E.D. Cal. March 3, 1993), aff'd 13 F.3d 305 [24 ELR 20225] (9th Cir. 1993), plaintiffs brought suit after the state determined that a Clean Water Act permit was not required for defendant's effluent discharge. The District Court held that while a substantive challenge to the conditions of the permit would lie in state court, challenges based on the state's failure to require a permit at all are proper in federal court. Id. at *18. Similarly, in the case at bar, Plaintiff's challenges, grounded in PADER's failure to require a Part D permit, are proper in federal court. The Individual Plaintiffs have not established standing to maintain this action in federal court, but the Corporate Plaintiffs have established standing. Article III of the Constitution limits the jurisdiction of federal courts to an actual "case or controversy." Allen v. Wright, 468 U.S. 737, 750 (1984). An "essential and unchanging" component of this jurisdictional prerequisite is that the plaintiff have standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The primary focus of the standing issue is "on the party seeking to get his complaint before a federal court." Flast v. Cohen, 392 U.S. 83, 99 (1968). The Supreme Court has laid out the constitutional requirements for standing: [26 ELR 20184] Lujan, 504 U.S. at 560-61. In short, the three constitutional requirements are injury, causation, and redressability. The burden of proving these three elements falls on the party invoking federal jurisdiction. Id. at 561 (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990); Warth, 422 U.S. at 508). Establishing standing is more than just a mere pleading requirement but rather "an indispensable part of the plaintiff's case." Lujan, 504 U.S. at 561. Each element must be supported "with the manner and degree of evidence required at the successive stages of litigation." Id. (citing Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 114-15 n.31 (1979); Simon, 426 U.S. at 45 n.25; Warth, 422 U.S. at 527, and n.6 (Brennan, J., dissenting)). At the trial stage the plaintiff must set forth specific facts "supported adequately by the evidence adduced at trial." Lujan, 504 U.S. at 561, (quoting Gladstone Realtors, 441 U.S. at 115).5 The doctrine of standing is a blend of the above three constitutional requirements plus three related prudential considerations. These latter principles are: (1) that the plaintiff does not rest the claim on third parties' rights or interests; (2) the plaintiff's injury does not amount to a generalized grievance; and (3) that the plaintiff suffers injury to an interest within the zone protected or regulated by the statute or constitutional guarantee. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 474-75 (1982). To satisfy the first constitutional element of standing, injury in fact, a plaintiff must prove his injury to be "concrete and particularized" and "actual or imminent, not 'conjectural' or 'hypothetical.'" Lujan, 504 U.S. at 560, (citations omitted). We believe the Individual Plaintiffs here have not made such a showing. The Individual Plaintiffs base their alleged injuries on the following facts. Plaintiff John Snyder resides approximately 25 miles from the Morgantown Landfill and utilizes the recreational resources of Lancaster and Berks counties with his young children. Stip. at PP 7, 21-28. In addition, Plaintiff's expert stated that the air quality in Berks County would have been better if Defendant complied with CAA Part D permitting requirements. Id. at P 101(e). This is so because the CAA requires a new major facility in a nonattainment area to obtain an offsetting emission reduction as a condition precedent to obtaining a construction permit. 42 U.S.C. § 7503 (a)(1)(A); see also 40 C.F.R. § 51.165(a)(3)(ii)(F). As a consequence, Plaintiff Snyder asserts that emissions from the Morgantown Landfill will diminish surrounding air quality and thereby adversely affect his health, environmental and recreational interests. Plaintiff's Trial Brief at 43. Plaintiff Jeffrey Horowitz resides approximately 85 miles from the landfill. Stip. at P 10. Nonetheless, his residence still falls within the Northeast Ozone Transport Region, the same nonattainment region that the Morgantown Landfill falls within. Id. at PP 29-30. He bicycles, skis, and regularly uses the outdoor recreational resources of northern New Jersey with the rest of his family. Id. Plaintiff Horowitz claims that given this he suffers anxiety over the impact of Morgantown Landfill emissions on his health. Plaintiff's Trial Brief at 46. Plaintiff's expert stated that such concerns are reasonable. Elias Aff. at P 18. He is also concerned with the ecological health of the Great Swamp National Wildlife Refuge, a place where he regularly bicycles. Id. Plaintiff's expert testified that elevated levels of ozone negatively impact such ecosystems and degrade the aesthetic appeal of the sky. Elias Aff. at P 20. The expert did not state the amount of ozone necessary to create such effects. The Supreme Court has long recognized that injury to a plaintiff's health, environmental, recreational, or aesthetic interests constitutes the type of injury sufficient to confer standing. Morton, 405 U.S. at 734. Nonetheless, we believe the Individual Plaintiffs fall short of establishing that their alleged injuries are sufficiently concrete to satisfy the first prong of the standing test. As stated earlier, at this stage of litigation the plaintiff must set forth specific facts "supported adequately by the evidence adduced at trial." Lujan, 504 U.S. at 561, (quoting Gladstone Realtors, 441 U.S. at 115). The Individual Plaintiffs, however, offer no evidence regarding the magnitude of the diminished air quality nor the specific direct effect, if any, that this diminished air quality will have on their health, environmental and recreational interests. From the fact that the air quality in the geographical area surrounding the landfill would have been better had Defendant obtained a Part D permit, Individual Plaintiffs summarily conclude that their health, environmental and recreational interests suffer injury, without filling in the blanks. Plaintiff's Trial Brief at 43-47. The cases the Individual Plaintiffs rely on upholding standing involved more specific injuries to the complaining party's health, environmental and recreational interests than those alleged by Plaintiffs here. In Public Int. Research of N.J. v. Powell Duffryn, 913 F.2d 64 [20 ELR 21216] (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991), plaintiffs sued defendant for discharging effluent into the Kill Van Kull waterway in violation of its Clean Water Act discharge permit. The court found injury in fact to the plaintiff's aesthetic and recreational interests. Id. at 71. One plaintiff submitted an affidavit stating that he was offended by brown color and bad odor of the water and that he would birdwatch and enjoy his recreation more frequently on the Kill Van Kull if the water was cleaner. Id. Other plaintiffs/affiants stated they would boat, fish, or swim on the Kill Van Kull if the water was cleaner. Id. The court, noting that the defendant did not introduce any evidence challenging the legitimacy of plaintiff's injuries, found sufficient interference with the plaintiff's enjoyment of the Kill Van Kull to satisfy the injury in fact requirement of the standing test. Id. Deciding whether to grant the Individual Plaintiffs standing in the instant case was admittedly a close call. Nevertheless we believe the Plaintiffs have not set forth facts establishing their injuries with the degree of specificity required by the Third Circuit in Powell Duffryn. The plaintiffs in Powell Duffryn showed that defendant's effluent discharges impaired the Kill Van Kull waterway and explained how this impairment negatively impacted their use and enjoyment of the resource. The Individual Plaintiffs in the case at bar have made no such showing. They have not offered evidence establishing how much ozone will be produced by emissions of VOCs from the landfill.6 In addition, they never established that increased ozone levels would be severe enough to affect their health, recreational or environmental interest. In fact, unlike the plaintiffs in Powell Duffryn, the Individual Plaintiffs here have not even asserted that they have or will curtail their outdoor activities due to the Morgantown Landfill's emissions. Instead, the Individual Plaintiffs cursorily rely on general EPA recognition that landfill emissions present human health hazards. Plaintiff's Trial Brief at 40. In short, the Individual Plaintiffs are too hasty in drawing a causal connection between VOC emissions from the Morgantown Landfill and the potential injury to their health, environmental and recreational interests. The Individual Plaintiffs therefore have not satisfied their burden of proving injury in fact and thus do not have standing to bring this action. If they did have standing on the facts before us, standing would become automatic for anyone living in the Northeast Ozone [26 ELR 20185] Transport Region. This would be directly contrary to the Supreme Court's holding in Lujan. Given Plaintiff's failure to establish injury in fact, it is not necessary to determine whether the Individual Plaintiffs satisfied the other two constitutional requirements for standing. We believe the Corporate Plaintiffs have standing to maintain the present action. Their injury is economic in nature. Plaintiff OMSL, a wholly owned subsidiary of Plaintiff OPI, operates a solid waste incinerator in Lancaster County, PA, approximately 35 miles from the Morgantown Landfill. Stip. at PP 15, 16, 19. OMSL obtained a CAA permit from PADER prior to constructing its incinerator in 1989. Horowitz Aff. at P 17. Defendant never obtained a CAA Part D permit for the Morgantown Landfill. Stip. at P 45. Corporate Plaintiffs therefore incurred the costs of complying with the CAA while Defendant did not. See Plaintiff's Trial Brief at 50. Corporate Plaintiffs claim that this cost differential translates into their own economic injury because they are competitively disadvantaged as compared to Defendant, an alleged competitor in the solid waste disposal market. Id. at 49-50. Economic harms are recognized as injuries sufficient to confer standing. Morton, 405 U.S. at 733 ("palpable economic injuries have long been recognized as sufficient to lay the basis for standing . . ."). The Corporate Plaintiffs have proven economic harm sufficient to establish injury in fact. The OMSL incinerator and the Morgantown Landfill, located just 35 miles from each other, are both solid waste disposal facilities. Stip. at P 19. We do not doubt that to some extent the two facilities compete against each other.7 Thus, if Defendant illegally escaped regulatory compliance costs in not obtaining the necessary CAA permit, while Plaintiffs incurred such costs, we agree that Plaintiffs suffer competitive disadvantage sufficient to constitute injury in fact. Two competitors are not operating on a level playing field if one acts in accordance with all applicable environmental laws while the other does not. Association of Data Processing Service Org., Inc. v. Camp, 397 U.S. 150 (1970), involved a claim of competitive injury similar to the one involved here. In Camp, plaintiffs challenged a ruling of the Comptroller of the Currency allowing banks for the first time to make data processing services available to other banks and to bank customers. Id. at 151. The Supreme Court upheld standing based on plaintiff's allegations that this new competition: might entail some future loss of profits for the petitioners, [and] that respondent [bank] was performing or preparing to perform such services for two customers for whom petitioner Data Systems, Inc., had previously agreed or negotiated to perform such services. Corporate Plaintiffs here offer specific evidence of similar economic injury. Jeffrey Horowitz, an employee of the Corporate Plaintiffs as well as an Individual Plaintiff in this action, submitted an affidavit stating: certain of defendant's identified sources of residual waste are or were customers of residual waste for OMSL. In addition, certain of those customers and sources identified in the fee reports [Ex. N] have been pursued in the past by OMSL as potential customers. Horowitz Aff. at P 22, Plaintiff's Trial Brief at 56. As such, the Corporate Plaintiffs and the Defendant are in a competitive relationship with each other similar to the one the Supreme Court found sufficient to support standing in Camp. Defendant cites Public Citizen v. Lockheed Aircraft Corp., 565 F.2d 708 (D.C. Cir. 1977) in arguing Plaintiffs do not suffer economic injury. Defendant's Trial Brief at 68-70.8 In Lockheed, firms involved in buying and selling used industrial machinery challenged the sale of government equipment to Lockheed Corporation. They alleged that the sale resulted in increased competition. 565 F.2d at 719. The Court denied standing finding no evidence that "Lockheed regularly competes with . . . [plaintiffs] in the machinery resale market" or that Lockheed sold the equipment obtained in the challenged sale to "the same class of buyers to whom . . . [plaintiffs] would attempt to sell." Id. at 719-20. The present case is distinguishable on the facts. The two parties here are competitors in the solid waste disposal business. In addition, the Horowitz Affidavit indicates that the Plaintiffs and the Defendant share a similar customer base. Determining whether the Corporate Plaintiffs suffered injury in fact was admittedly also a close call. Nevertheless, we believe they have established sufficient economic injury to themselves stemming from Defendant's failure to obtain a Part D permit to constitute injury in fact. The second constitutional element of standing requires that a plaintiff's injury be "fairly . . . traceable to the challenged action of the defendant. . . ." Lujan, 504 U.S. at 560-561 (quoting Simon, 426 U.S. at 41-42). This element is easily satisfied here as Plaintiff's competitive injury stems directly from Defendant's alleged unlawful violation of the CAA. If Defendant had acquired the allegedly required CAA permit, Plaintiffs would not suffer any competitive disadvantage attributable to Defendant. The third constitutional element of standing requires a plaintiff to demonstrate that his injury is "likely" to be "redressed by a favorable decision." Id. If the Plaintiffs prevail on the merits here and this Court orders compliance with the CAA, Plaintiffs and Defendant will be competing on a level playing field thereby eliminating any competitive disadvantage. As such, the Corporate Plaintiffs have satisfied this prong of the standing test. We therefore believe that the Corporate Plaintiffs have standing to bring the present action in federal court. Title I of the federal CAA comprehensively regulates stationary sources of air pollution. 42 U.S.C. §§ 7401 et seq. Pursuant to sections 108 and 109 of the CAA, the EPA sets national ambient air quality standards ("NAAQS") for air pollutants such as ozone, nitrogen oxides, carbon monoxide, and particulate matter. 42 U.S.C. §§ 7408, 7409 (1988 & Supp. II 1990). Individual states then prepare a state implementation plan ("SIP") in an attempt to attain these air quality standards. 42 U.S.C. § 7410 (1988 & Supp. II 1990). As one means for achieving and maintaining the NAAQS, Part D of Title I of the CAA requires preconstruction review for proposed pollutant sources located in geographic areas whose air quality fails to meet the NAAQS. 42 U.S.C. §§ 7501 et seq. These areas are said to be "not in attainment" with the NAAQS. A proposed stationary source in an ozone nonattainment area that has the "potential to emit" volatile organic compounds ("VOCs") in excess of the established "threshold" is considered a "major" source and thereby subject to EPA's Part D permitting requirements. 42 U.S.C. § 7511a(f) (1988 & Supp. II 1990); 40 C.F.R. § 165(a)(1)(iv)(B) (1994); see Stip. at P 40.9 Berks County, the site of the Morgantown Landfill, lies within the Northeast Ozone Transport Region, an area which is not in attainment with the NAAQS for ozone. See 42 U.S.C. § 7511c(a); 40 C.F.R. 81.339 (1994); Stip. at P 41. The threshold quantity for VOC emissions in Berks County is 50 tons per year or more. 42 U.S.C. § 7511c(b)(2)10; Stip. at P 43. Any proposed stationary source in Berks [26 ELR 20186] County that has the "potential to emit" at least 50 tons per year of VOCs is therefore a "major" source and must obtain a CAA Part D permit. Id. The substance of the parties' dispute involves whether Defendant's Morgantown Landfill constitutes such a "major" stationary source—whether it has the "potential to emit" at least 50 tons per year of VOCs—and was therefore constructed in violation of the CAA's Part D permit requirement. The Morgantown Landfill consists of waste areas, a leachate collection system, a liner system, a cap, and a gas collection and flare system. Stip. at P 51. The parties agree that the Landfill will produce at most between 580 to 663 tons of nonmethane organic compounds ("NMOCs") per year. Stip. at P 78. For present purposes, we will treat NMOC emissions as equivalent to VOC emissions.11 The gas collection and flare system (the "gas management system"), however, collects this landfill gas and processes it in a flare. According to the Defendant, this process destroys 99 percent of the NMOCs in the landfill gas. Stip. at P 54, 80. If the gas management system collects 100% of the gas generated and the flare operates at a 99% destruction efficiency, the maximum quantity of NMOCs emitted into the atmosphere from the flare will be between 5.8 and 6.7 tons per year. Stip. at P 82. The parties disagree over whether the gas management system can be taken into account in determining whether the landfill has the potential to emit 50 tons or more per year of VOCs. For Part D permitting purposes, the EPA defines "potential to emit" as follows: "Potential to emit" means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored or processed, shall be treated as part of its design only if the limitation or the effect it would have on emissions is federally enforceable. Secondary emissions do not count in determining the potential to emit of a stationary source. 40 C.F.R. § 51.165(a)(1)(iii) (1994). As such, if the gas management system is a "physical or operational limitation. . .including air pollution control equipment" on the landfill's capacity to emit VOCs it must be "federally enforceable" in order for its effect to be taken into account in assessing the landfill's potential to emit. Id. Defendant does not dispute Plaintiff's assertion that at the time the Morgantown Landfill was constructed and at the present time the gas management system is not "federally enforceable." See Plaintiff's Trial Brief at 25-26.12 If, on the other hand, the gas management system is part of the Morgantown Landfill's "physical and operational design" then the system does not have to be federally enforceable in order to be taken into account in assessing the landfill's potential to emit VOCs. As a consequence, the core of the present substantive dispute involves whether the Morgantown Landfill's gas management system is part of the landfill's "physical and operational design" or whether it is a "physical or operational limitation" such as "air pollution control equipment." We conclude that the Landfill's gas management system is a physical limitation on the Landfill's potential to emit VOCs and thus cannot be taken into account in assessing potential to emit because it is not federally enforceable. Therefore, Defendant constructed the Morgantown Landfill in violation of the CAA. Although a difficult decision, we have classified the gas management system as a "physical limitation" as opposed to part of the landfill's "physical or operational design" for the following reasons. We first compare the purposes and functions of the Landfill to those of the gas management system. The Landfill's primary purpose is to dispose solid waste and hence was designed with this purpose in mind. The gas management system's purpose is to limit landfill emissions and hence was "designed to collect and control landfill gas." Stip. at P 53.13 Given this, the gas management system is more readily classified as a physical limitation on the landfill's potential to emit VOCs.14 We note additionally that this reading is necessary in order to maintain the integrity of the EPA's definition of "potential to emit." The definition's first sentence addresses "physical and operational design" and the second sentence addresses "physical or operational limitations" on potential to emit. 40 C.F.R. § 51.165(a)(1)(iii) (1994). Just as Defendant seeks to classify its gas management system as part of the Landfill's physical and operational design, one could similarly classify any type of air pollution control equipment as part of a landfill's physical and operational design. Defendant offers no concrete reasons why a gas management system but not other pollution control equipment should be considered part of a landfill's physical and operational design. Accepting Defendant's classification would lead us to apply this classification to many other types of pollution control equipment thereby effectively reading the second sentence out of the EPA's definition of "potential to emit." We doubt EPA intended this result when it defined "potential to emit." Both parties have discussed the 1987 EPA guidance memorandum from Gerald A. Emison. Since this memorandum is not part of the Stipulation, we doubt that it is properly before us. Even if we were to consider this EPA guidance memorandum, we would disagree with Defendant's interpretation of it. See Defendant's Trial Brief at 28-29. The second page of the memo states that it is the pollutant released in the exhaust gas from a flare that counts towards New Source Review applicability. The memo makes no reference to a "federal enforceability" requirement. As such, Defendant asserts that the gas management system should be taken into account in assessing its potential to emit VOCs, regardless of whether it is federally enforceable. Id. We disagree with this conclusion. The Emison memo's failure to mention "federally enforceable" is not sufficient to read the requirement out of the EPA's definition of "potential to emit." Given our conclusion that the gas management system is a physical limitation on the Landfill's potential to emit, its effect on emissions can only be taken into account if the system is a "federally enforceable" requirement. 40 C.F.R. § 51.165(a)(1)(iii). At the time of construction, as well as at the present time, however, the gas management system is not federally enforceable. See Plaintiff's Trial Brief at 25-26. Defendant does not contest this. As such, its impact on emissions cannot presently be taken into account in assessing the Landfill's potential to emit VOCs. The parties stipulated that the Landfill will produce at most between 580 and 663 tons of NMOCs per year.15 Stip. at P 78. At this emission level, and in the absence of the gas management system being federally enforceable, Defendant was required to obtain a CAA Part D permit. 42 U.S.C. § 7511a(f); see Stip at P 40. Since Defendant did not, it constructed and continues to operate the Landfill in violation of the CAA. Before discussing the appropriate remedy, we must address Plaintiff's argument that even taking into account the gas management system in quantifying the Landfill's emissions, Defendant still [26 ELR 20187] needs a Part D permit because the Landfill's combined flare and fugitive emissions will exceed the 50 tons per year threshold. Plaintiff's Trial Brief at 28 n.17; Plaintiff's Reply Brief at 17 n.11. If Plaintiffs are correct, then a remedy forcing Defendant to make the gas management system a federally enforceable requirement would not solve the problem and it might be necessary to order Defendant to obtain a Part D permit. We, however, disagree with Plaintiff's legal conclusion.16 At the present time we believe fugitive emissions may not be counted in determining whether landfills are major sources for Part D permitting purposes. Section 302(j), entitled "definitions," instructs when fugitive emissions may be counted in determining what constitutes a major source. This section states: Except as otherwise expressly provided, the terms "major stationary source" and "major emitting facility" mean any stationary facility or source of air pollution which directly emits, or has the potential to emit, one hundred tons per year or more of any air pollutant (including any major emitting facility or source of fugitive emissions of any such pollutant, as determined by rule by the Administrator). 42 U.S.C. § 7602(j) (1988 & Supp. II 1990). Thus under this section fugitive emissions may not be counted unless EPA has first conducted a rulemaking. Alabama Power Co. v. Costle, 636 F.2d 323, 369-70 [10 ELR 20001] (D.C. Cir. 1979). Further, EPA's Part D regulations provide that "the fugitive emissions of a stationary source shall not be included in determining . . . whether it is a major stationary source unless the source. . ." falls within a source category listed by formal rulemaking. 40 C.F.R. § 51.165(a)(1)(iv)(C) (1994). Despite listing several source categories in § 302(j) rulemakings, EPA has not listed landfills. As such, fugitive emissions from Defendant's Morgantown Landfill may not be counted in determining whether it meets the 50 tons per year threshold as EPA has not satisfied the rulemaking requirement.17 Given our finding that Defendant violated and continues to violate the CAA it is our duty to fashion an appropriate remedy. For the reasons stated below, we reject draconian measures and instead elect to merely order Defendant to continue pursuing a permit for the gas management system from PADER.18 Once PADER issues a permit, the gas management system will become a federally enforceable requirement19 and Defendant will no longer be in violation of the CAA as its potential to emit VOCs will fall below the 50 ton per year threshold. See supra at 20-22. We decline Plaintiff's requests to enjoin operation of the landfill until Defendant complies with the CAA. Even in the context of federal environmental citizen suits, federal courts maintain discretion in issuing injunctive relief. Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-14 [12 ELR 20538] (1982) (quoting Porter v. Warner, 328 U.S. 395, 398 (1946)). Further, the CAA does not limit a federal court's discretion in fashioning remedies. See United States v. Midwest Suspension and Brake, 824 F. Supp. 713 (E.D. Mich. 1993), aff'd, 49 F.3d 1197 (6th Cir. 1995); United States v. SCM Corp., 667 F. Supp. 1110 [18 ELR 20073] (D. Md. 1987). We are mindful of the factors we must consider in granting or denying a permanent injunction.20 We find our limited injunctive relief appropriate for several reasons. When Defendant went through the permitting process, PADER did not require that it obtain a CAA permit and we find that Defendant acted in good faith in reliance on PADER's determination. In addition, determining whether a CAA permit was necessary for Defendant's Landfill is not an easy task. Although we now find that Defendant should have obtained a permit so as to make its gas management system a federally enforceable requirement, we have admittedly had to make difficult regulatory interpretations without the benefit of prior judicial decisions. We can well understand how Defendant might have reached a contrary conclusion. Even though we have found that the Individual Plaintiffs lack standing we believe the public could ultimately be affected by this matter and we will presume some harm to the environment. See Natural Resources Defense Council v. Texaco, 906 F.2d 934, 941 [20 ELR 20949] (3d Cir. 1990). Nevertheless, at this time the Stipulation does not establish sufficient economic harm to Plaintiffs, or other harm to the public or the environment as a whole to warrant a shutdown of the Landfill pending receipt of a gas management system permit. The Landfill only began operation in January, 1994. Stip. at P 69. The anaerobic decomposition of waste within the Landfill will begin after the waste has been in place for a period of time, no longer than two years. Stip. at P 35. When the decomposition does begin it will not involve a large portion of the total capacity of the Landfill. As of February, 1995, simple mathematics tells us that less than seven percent of waste was in place out of the total capacity of the Landfill (894,850 tons out of 12.8 to 15.3 million tons). Stip. at P 70. In addition, we note that PADER has not taken any shutdown action in response to the Revised Air Quality Permit Application. Therefore, after balancing the equities we find our limited injunctive relief appropriate. It is obvious that money damages could not address this situation and that no adequate remedy at law exists. Similarly, we find civil penalties inappropriate given the complexity of determining whether a permit was required. In General Elec. Co. v. EPA, 53 F.2d 1324, 1328-29 [25 ELR 20982] (D.C. Cir. 1995), the court held that civil fines may not be imposed for violating a regulatory requirement unless the violator had fair notice of what was proscribed or mandated by the requirement. Notice results either from pre-enforcement agency efforts to encourage compliance or from a regulation that is clear on its face. Id. at 1329. In the instant case neither EPA nor PADER notified Defendant of a need to obtain a CAA permit. In addition, we find the regulations regarding the permit not sufficiently unambiguous so as to put Defendant on noticethat it needed a permit. In fact, given that we experienced difficulty in deciding whether a gas management system is part of a landfill's "physical and operational design" or rather a physical limitation on its potential to emit VOCs, we do not fault Defendant for interpreting the regulation as it did. As such, we refuse to fine Defendant. Costs are denied for the same reasons. VI. Conclusion For the foregoing reasons, we conclude this court has jurisdiction to hear the present action, the Individual Plaintiffs lack standing to maintain this action, the Corporate Plaintiffs have standing to bring this action, and that the Defendant violated the CAA. An appropriate order follows. AND NOW, this 21st day of September, 1995 after full consideration of the parties' joint pretrial stipulation, filed on June 16, 1995, Plaintiff's trial brief, filed on July 14, 1995, Defendant's trial brief, filed on August 11, 1995, Plaintiff's reply brief, filed on August 25, 1995, and Defendant's surreply brief, filed on September 15, 1995, it is hereby ORDERED consistent with the foregoing decision as follows: (1) The Defendant New Morgan Landfill Company, Inc. shall continue pursuing its presently pending permit application for the Morgantown Landfill's gas management system with the Pennsylvania Department of Environmental Resources. (2) The Morgantown Landfill shall be operated consistent with said permit when it is received. (3) Judgment is hereby entered in favor of Defendant New Morgan Landfill Company, Inc., and against Plaintiffs John Snyder and Jeffrey R. Horowitz. (4) All other relief is DENIED at this time. It is FURTHER ORDERED that the Clerk of Court mark this action closed for statistical purposes and place the matter in the Civil Suspense File, and that the Court shall retain jurisdiction over this matter should enforcement or modification of our order be necessary in the event that Defendant fails to obtain the above mentioned permit from the PADER within a reasonable time, or in the event that the Landfill is not operated in accordance with said permit. 1. The parties contemplated resolution of outstanding issues pertaining to standing and a trial and decision on the merits if the Court found plaintiffs had standing. In that respect Plaintiffs seek a final permanent injunction. 2. The Defendant has objected to several factual matters contained in the Stipulation. See Stip. at PP39, 102. To the extent that Defendant objects to relevance, the objection is overruled. To the extent that the Defendant disputes accuracy, we note that Defendant has presented no factual evidence to support Defendant's objections and such bare allegations are not admissible at trial and would not even be sufficient to oppose a motion for summary judgment. First Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). Local Civil Rule 16.1(d)2.(b)(2) and our October 18, 1994, pretrial order both required that this case be ready when called for trial. To the extent that Defendant objects to admissability, this is inconsistent with the Court's order of April 20, 1995, the parties' acquiescence in that order, and subsequent express stipulation that the Court shall resolve this matter on the stipulated facts presented. 3. Although hotels may not themselves emit regulated air contaminants, they are considered indirect sources of air pollution in Nevada because they attract or involve automobile traffic which may emit air contaminants for which there are applicable ambient air quality standards. Id. at 1167. 4. Clean Water Act, 33 U.S.C. § 1365(a) ("any citizen may commence a civil action on his own behalf. . .against any person. . .alleged to be in violation of. . .an effluent standard or limitation under this chapter. . ."). 5. In Gladstone Realtors the Supreme Court recognized that in some instances the standing issue is not resolved until the trial stage of litigation. 441 U.S. at 115 n.31. 6. According to the EPA, landfills contribute to the formation of ozone through the following process. The anaerobic decomposition of buried waste in landfills produces landfill gas. Stip. at P 34. Landfill gas contains trace amounts of NMOCs, which consist primarily of VOCs. Id. at P 36. VOCs in turn contribute to the formation of ozone. Id. at P 38(i). 7. We find sufficient indicia of competition without relying on the stipulated facts at P 97 which only establishes that in responding to Plaintiff's interrogatory, Defendant stated that it "objects to this interrogatory insofar as it seeks the disclosure of confidential customer information to a competitor." 8. Note that in Lockheed the court addressed whether plaintiffs established standing under the Administrative Procedure Act, not under the Constitution. 565 F.2d at 714. 9. The EPA has established detailed preconstruction permitting requirements that a SIP must include to satisfy Part D. See 40 C.F.R. § 51.165 (1994), 40 C.F.R. § 52.24 (1994), and 40 C.F.R. Part 51, Appendix S (1994). These include the requirement that major source applicants (a) obtain sufficient "offsetting emissions reductions" from existing air pollution sources in the proposed project's geographic area; (b) demonstrate that the offsetting emissions reductions procured ensure that the nonattainment area make progress toward complying with the applicable NAAQS and provide a net air quality benefit to the area; and (c) install air pollution control equipment to comply with the Lowest Achievable Emission Rate standard. 42 U.S.C. § 7503(a)(1)(A); see also 40 C.F.R. §§ 51.165(a)(2), (a)(3)(ii)(F) (1994). 10. This section states: any stationary source that emits or has the potential to emit at least 50 tons per year of volatile organic compounds shall be considered a major stationary source and be subject to the requirements which would be applicable to major stationary sources if the area were classified as a Moderate nonattainment area [among which is the requirement to obtain a Part D permit per CAA §§ 181(a)(2)(C)(i) and 182(b)]. 11. According to the EPA, NMOCs consist primarily of VOCs. 56 Fed. Reg. at 24473, see Stip. at P 36. Although Defendant may dispute this, Stip. at 39, at a very minimum Defendant agrees that "NMOCs may conservatively be used as a proxy for VOCs." Defendant's Trial Brief at 32 n.17. 12. Defendant correctly maintains, see infra n.19, that if PADER approves the presently pending gas management system permit application, the gas management system will become a "federally enforceable" requirement. Defendant's Trial Brief at 81 n.46. 13. Defendant asserts that the gas management system is part of the landfill's physical and operational design because it "is critical to the safe operation of the landfill." Defendant's Trial Brief at 27. While the importance of a gas management system for safety reasons may be true, it does not warrant the conclusion that a gas management system is part of the landfill's physical and operational design. It is obvious that landfills can be constructed without gas management systems and in fact have been constructed without them for hundreds of years. As such, the fact that the gas management system solves safety problems in addition to controlling landfill gas emissions does not automatically compel the conclusion that the system is part of the design as opposed to a limitation on emissions. 14. This classification is also consistent with the EPA's choice of technology for controlling landfill emissions. In the preamble to its proposed New Source Performance Standards ("NSPS") for landfills that the NSPS "requires to control emissions to the level achievable by 'best demonstrated technology' . . .", the EPA describes "best demonstrated technology" as "(1) A well-designed and well-operated gas collection system and (2) a control device capable of reducing NMOCs in the collected gas by 98 weight-percent." 56 Fed. Reg. at 24469-24470. 15. As already discussed in note 11 of this decision, for present purposes we are treating NMOC emissions as equivalent to VOC emissions. According to the EPA, NMOCs consist primarily of VOCs. 56 Fed. Reg. at 24473, see Stip. at P 36. Although, Defendant may dispute this, Stip. at P 39, at a very minimum Defendant agrees that "NMOCs may conservatively be used as a proxy for VOCs." Defendant's Trial Brief at 32 n.17. 16. In its initial Air Quality Permit Application, Defendant estimated that the combined flare and fugitive emissions will exceed 50 tons per year. Stip. at P 85. Although it is not part of the Stipulation, both parties acknowledge that Defendant's Revised Air Quality Permit Application stated that the combined flare and fugitive emissions will never exceed 47.5 tons per year. See Plaintiff's Reply Brief at 17 n.11; Defendant's Trial Brief at 40-41. Plaintiffs argue in their brief that we should find that Defendant "massaged" the data in order to avoid Part D permitting requirements. Plaintiff's Reply Brief at 17 n.11. Obviously if the Revised Application is correct, the Landfill's emissions will not exceed 50 tons per year and the Landfill would therefore not be a "major source" for Part D permitting purposes. Because the Revised Application is not part of the Stipulation we decline to consider it at this time. 17. Plaintiffs claim that EPA's adoption of Pennsylvania's SIP, which aggregates stack and fugitive emissions, constitutes a rulemaking for § 302(j) purposes and therefore Defendant's fugitive emissions must be taken into account in assessing its potential to emit VOCs. Plaintiff's Reply Brief at 17 n.11. Plaintiffs rely on Duquense Light Co. v. EPA, 698 F.2d 456 [13 ELR 20251] (D.C. Cir. 1983) to support their position. Duquense Light upheld EPA's decision to include fugitive emissions in defining "potential to emit" in its section 120 noncompliance penalty program regulations. This definition states: "Potential to emit" means . . . Fugitive emissions . . . will be considered in determining annual potential for those stationary sources whose fugitive emissions are regulated by the applicable state implementation plan. 40 C.F.R. § 66.3(j) (1981). The court found that EPA's initial adoption of the SIP and subsequent reliance on it in deciding to include fugitive emissions in the definition of "potential to emit" satisfied the § 302(j) rulemaking requirement. Duquesne Light, 698 F.2d at 474-75. In the instant case, EPA's definition of "potential to emit" for Part D permitting purposes makes no mention of fugitive emissions. 40 C.F.R. § 51.165(a)(1)(iii). Moreover, the regulations provide that "the fugitive emissions of a stationary source shall not be included in determining . . . whether it is a major stationary source, unless the source . . ." falls within a source category listed by formal rulemaking. 40 C.F.R. § 51.165(a)(1)(iv)(C) (1994). As such, the fact that EPA adopted Pennsylvania's SIP which aggregates fugitive and flare emissions is irrelevant here. Under Duquense Light only if EPA had relied on the SIP in defining "potential to emit" would EPA's adoption of the SIP constitute a rulemaking sufficient for § 302(j) purposes. 18. This application is presently pending before PADER. 19. See 40 C.F.R. § 51.165(a)(1)(xiv) (1994) (defining "federally enforceable" to include "operating permits issued under an EPA-approved program that is incorporated into the State implementation plan and expressly requires adherence to any permit issued under such program"). The Pennsylvania operating permit program, codified at Pennsylvania Code, Chapter 25, Subchapter A, is part of Pennsylvania's EPA-approved SIP. See 40 C.F.R. § 52.055 (1994). Pennsylvania's operating permit regulations require adherence to permits issued thereunder. See 25 Pa. Code § 127.25 (1994). 20. Permanent injunctive relief is appropriate where (1) plaintiff successfully proves the merits of its case, (2) no available remedy at law exists, and (3) the balance of the equities favors granting such relief. Ciba-Geigy Corp. v. Bolar Pharmaceutical Co., 747 F.2d 844, 850 (3d Cir. 1984), cert. denied, 471 U.S. 1137 (1985); Travellers International AG v. Trans World Airlines, Inc., 722 F. Supp. 1087, 1096 (S.D.N.Y. 1989). 26 ELR 20182 | Environmental Law Reporter | copyright © 1995 | All rights reserved |