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UNITED STATES v. SOLAR TURBINES

November 28, 1989

UNITED STATES OF AMERICA, Plaintiff
v.
SOLAR TURBINES, INC., Defendant


Sylvia H. Rambo, United States District Judge.


The opinion of the court was delivered by: RAMBO

SYLVIA H. RAMBO, UNITED STATES DISTRICT JUDGE.

 This is a civil enforcement action by the United States at the request of the Environmental Protection Agency (EPA) under the Clean Air Act (CAA), sections 113(b) and 167, 42 U.S.C.S. §§ 7413(b), 7477 (Law. Co-op. 1989) against Solar Turbines, Inc. (Solar). Subject matter jurisdiction exists under those Act sections and 28 U.S.C. sections 1331, 1345, and 1355. Both parties have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 Summary judgment is warranted when pleadings, affidavits and other materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." It is this court's responsibility to determine whether there exists a genuine and material issue of fact. In making the decision "the evidence of the nonmovant is to be believed and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970)).

 Background

 Before setting forth the facts underlying this case, an overview of relevant Act provisions is necessary. The Clean Air Act provides that "each State shall have the primary responsibility for assuring air quality [within the state] by submitting an implementation plan for each State. . . ." CAA, § 107, 42 U.S.C.S. § 7407(a). This state implementation plan (SIP) must categorize regions within the state according to their level of air quality for various pollutants. An area that has attained a required level for a pollutant is characterized as an "attainment" or "clean air area" for that pollutant. Id. § 107(d)(1)(E), 42 U.S.C.S. § 7407(d)(1)(E). EPA must approve a proposed SIP when it determines the state plan was adopted after proper notice and hearing and provides sufficient mechanisms by which air quality requirements can be attained. Relevant to this case, the plan must include a permit program in accordance with Part C of the Act which deals with the prevention of significant deterioration (PSD) of air quality in a region that has been categorized attainment for a particular pollutant. Id. §§ 110(a)(2)(D), (J), 160-169; 42 U.S.C.S. §§ 7410(a)(2)(D), (J), 7470-7479. Section 165(a) of Part C requires that

 
no major emitting facility
 
. . . may be constructed [in a clean air area] unless -- (1) a permit has been issued for such proposed facility . . . setting forth emission limitations for such facility which conform to the requirements of this part; . . . (4) the proposed facility is subject to the best available control technology for each pollutant subject to regulation under this chapter emitted from such facility.

 Best available control technology (BACT) is defined at section 169(3), 42 U.S.C.S. § 7479(3) as

 
an emission limitation based on the maximum degree of reduction of each pollutant subject to [Part C] . . . emitted from . . . any major emitting facility, which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility. . . . In no event shall application of [BACT] result in emissions of any pollutants which will exceed the [new source performance standard].

 A federal regulation reiterates this definition. 40 C.F.R. § 52.21(b)(12) (1988).

 Pennsylvania submitted a plan which EPA accepted as meeting the CAA requirements, including those for the PSD permitting program. See 49 Fed.Reg. 33127 (Aug. 21, 1984) (adding 40 C.F.R. § 52.2020(c)(57)(1988)). As an approved state, Pennsylvania became the permit issuing authority for facilities within the state. The Pennsylvania PSD permit program in essence adopts the federal PSD permit issuance program. 25 Pa.Code §§ 127.81 to -.83. Section 127.83 incorporates by reference federal regulations promulgated at 40 C.F.R. § 52.21.

 These federal, and hence state, provisions in turn set forth the duties that EPA, its regional offices, and owner/operator permit applicants have within the PSD program. Duties of owners/operators include the following. First, they may not begin actual construction on a facility unless they have a permit stating the facility will meet the section's requirements. 40 C.F.R. § 52.21(i)(1). These requirements, spelled out in paragraphs (j) through (r), include: (1) a duty to meet SIP emission limitations as well as federally established standards under 40 C.F.R. Parts 60 and 61, 40 C.F.R. § 52.21(j)(1); (2) a duty to apply BACT, id. § 52.21(j)(2); (3) a duty to demonstrate the construction will not result in any violation of national air quality standards or regional allowances for increases over baseline amounts, id. § 52.21(k); (4) a duty to include preapplication analyses of specified kinds and to provide for postconstruction monitoring, id. § 52.21(m); (5) a duty to provide certain specified information and any other information the permitting authority requests regarding the source, id. § 52.21(n), and additional "impact" analyses, id. § 52.21(o). See also Alabama Power Co. v. Costle, 636 F.2d 323, 351-52 (D.C.Cir. 1979).

 Section 52.21(r), entitled "Source obligation," delineates grounds on which "appropriate enforcement action" may be taken against an owner/operator who is subject to Part C of the Act. These specific owner/operator violations are (1) constructing or operating the source in a manner "not in accordance with the application submitted pursuant to . . . section [52.21] or with the terms of any approval to construct . . ." or ...


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