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SOLAR TURBINES, INC. v. SEIF

May 26, 1988

SOLAR TURBINES, INCORPORATED, Plaintiff,
v.
JAMES M. SEIF, Regional Administrator, Region III, United States Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants



The opinion of the court was delivered by: RAMBO

 Sylvia H. Rambo, United States District Judge

 Procedural Background

 Plaintiff, Solar Turbines, Inc. (Solar), filed this action February 10, 1988. Solar is the owner and operator of a gas turbine cogeneration facility currently under construction at a Caterpillar, Inc. plant in York County, Pennsylvania. The defendants are the Environmental Protection Agency (EPA or the Agency) and James M. Seif, the Regional Administrator for Region III of the EPA. Solar seeks relief in the form of a declaratory judgment and a preliminary and permanent injunction. Pursuant to 28 U.S.C. § 2201, plaintiff seeks a declaration that the EPA acted outside its jurisdiction in issuing an Administrative Order directing Solar to halt construction of its power plant. In addition, Solar sought a temporary injunction enjoining the EPA from enforcing its Administrative Order and from revoking, revising or challenging plaintiff's state-issued construction permit.

 On February 12, 1988 the court granted plaintiff's request for a temporary restraining order (TRO) 678 F. Supp. 93. The order provided the TRO would remain in effect until the case could be heard on the merits. Originally a hearing on the merits was scheduled for March 21, 1988. Thereafter, a stipulation was filed, Doc. No. 16, providing that the TRO would remain in effect until the court either disposed of defendants' motion to vacate and dismiss or until a hearing on the merits, but not beyond June 27, 1988. This memorandum and order is the court's disposition on defendants' motion to vacate and dismiss.

 Factual Background

 To obtain a permit to construct a facility which will emit air pollutants, a builder must satisfy both state and federal regulations. The federal regulations are found in the Clean Air Act, 42 U.S.C. § 7401, et seq., and the state regulations for the Commonwealth of Pennsylvania are found in the Air Pollution Control Act, 35 Pa. Code, Chapter 23, which requires the builder to obtain a "plan approval," 25 Pa. Code § 127.11, from the Commonwealth of Pennsylvania Department of Environmental Resources (PADER).

 To satisfy the federal regulations, facilities such as Solar's, which will emit a regulated pollutant in excess of specified amounts, must obtain a specific permit -- Prevention of Significant Deterioration (PSD) permit, 42 U.S.C. § 7475. In the Clean Air Act, Congress provided a procedure whereby the appropriate state environmental agencies would be given EPA approval to issue the PSD permits. 42 U.S.C. § 7410(a)(2)(D), 7471, implemented by 40 C.F.R. § 51, et seq. PADER received approval for its permit process in 1984.

 Before commencing construction at the Caterpillar site, Solar applied to PADER for a construction permit. PADER issued a final permit to Solar on September 9, 1987. On February 1, 1988 Solar received an Administrative Order (AO) dated January 25, 1988 issued by defendant Seif.

 The AO states in pertinent part:

 
EPA finds that the PADER PSD permit issued to Solar Turbines does not conform to the requirements of Part C of the Act insofar as it fails to require installation of water or steam injection controls on the proposed gas turbines, in light of an absence of adequate justification as to why their installation is not required.
 
The construction of the Solar Turbine facility at the Caterpillar Tractor plant pursuant to an invalid permit constitutes a violation of Section 165(a) of the Act, 42 U.S.C. § 7475(a).

 AO at "Conclusions of Law" paras. 7 and 8. The AO ordered Solar to "cease any on-site construction activity" within ten ...


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