Ogden Projects, Inc. v. New Morgan Landfill Company, Inc., Civ. A. No. 94-3048.

• Decision Date: 08 January 1996
• Docket Number: Civ. A. No. 94-3048.
• Citation: 911 F. Supp. 863
• Parties: OGDEN PROJECTS, INC., Ogden Martin Systems of Lancaster, Inc., John Snyder, and Jeffrey R. Horowitz, Plaintiffs, v. NEW MORGAN LANDFILL COMPANY, INC., Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

911 F. Supp. 863

OGDEN PROJECTS, INC., Ogden Martin Systems of Lancaster, Inc., John Snyder, and Jeffrey R. Horowitz, Plaintiffs, v. NEW MORGAN LANDFILL COMPANY, INC., Defendant.

Civ. A. No. 94-3048.

United States District Court, E.D. Pennsylvania.

January 8, 1996.

COPYRIGHT MATERIAL OMITTED

Scott M. Turner, Michael S. Cohen, Rochester, NY, and Wilbur L. Kipnes, Philadelphia, PA, for plaintiffs.

Henry V. Nickel, Jeffrey N. Martin, William F. Pedersen, Washington, DC, and Peter F. Marvin, Philadelphia, PA, for defendant.

DECISION AND ORDER

VAN ANTWERPEN, District Judge.

On September 21, 1995, this Court ruled that Defendant, New Morgan Landfill Company, Inc., constructed a solid waste landfill in violation of the Clean Air Act. Ogden Projects, Inc. v. New Morgan Landfill Company, Inc., 1995 WL 564215 (E.D.Pa.). Much of the ruling was based on the Environmental Protection Agency's ("EPA's") regulation defining the term "potential to emit." Unbeknownst to us,¹ on September 15, 1995, six days before we ruled, the District of Columbia Circuit Court of Appeals vacated this regulation.

On October 5, 1995, Defendant submitted a Motion for Reconsideration requesting recision of our September 21, 1995, ruling in light of the D.C. Circuit's decision. After assessing this decision's impact, we now find Defendant not in violation of the Clean Air Act. Accordingly, we rescind all parts of our September 21, 1995, Decision and Order dealing with Defendant's violation of the Clean Air Act. In addition, for purposes of clarity, we reiterate all parts of our prior decision that remain unchanged thus creating one new comprehensive opinion.

I. BACKGROUND

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, without the requisite Clean Air Act permit. Plaintiffs are proceeding under the citizen suit provision of the Clean Air Act, 42 U.S.C. § 7604(a)(3) (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.² 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.³

II. STATEMENT OF FACTS

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 ¶¶ 4, 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 ¶¶ 47, 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 ¶ 65. The permit did, however, require Defendant to install and operate a gas management system. Id. at ¶ 64. 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 ¶ 66. On February 15, 1995, Defendant submitted an Air Quality Permit Application to PADER for the gas management system. Id. at ¶ 71. 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, 1992, and began accepting waste for disposal on January 6, 1994. Stip. at ¶ 69.

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 ¶ 11, 12. Commonly referred to as garbage incinerators, these facilities dispose of municipal solid waste through combustion. Id. at ¶ 13. 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 ¶¶ 15, 16, 19.

Plaintiff Jeffrey R. Horowitz is a Senior Vice-President and General Counsel for each of the corporate Plaintiffs. Id. at ¶ 9. 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 ¶¶ 6, 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.

III. Justiciability Discussion

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.

A. 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).

42 U.S.C. § 7604(a)(3).

This provision thus 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 (D.N.J.), aff'd 871 F.2d 319, 323-25 (3d. Cir. 1989); League to Save Lake Tahoe, Inc. v. Trounday, 598 F.2d 1164, 1173 (9th Cir.), cert. denied, 444 U.S. 943, 100 S.Ct. 299, 62 L.Ed.2d 310 (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, 105 S.Ct. 479, 482-83, 83 L.Ed.2d 472 (1984)).

Defendant cites Trounday in arguing 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. Plaintiffs asserted that the hotel emissions would violate these air quality standards.⁴ 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 forums 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 court 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...