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Pennsylvania Brownfields & Environmental Law Information and Developments in Brownfields and Pennsylvania Environmental Law

Case to Watch — Federal Court Allows Challenge to Air Permits that Bypasses Pennsylvania EHB

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On September 24, 2012, Judge Robert D. Mariani of the United States District Court for the Middle District of Pennsylvania denied Ultra Resources, Inc.’s motion to dismiss a citizen suit that challenges the issuance of general air permits for seven natural gas compressor stations (read the decision in its entirety here).  Ultra had obtained permits for the stations under GP-5, PA DEP’s general permit for the construction and operation of natural gas production facilities.  Citizens for Pennsylvania’s Future (PennFuture) contends in the lawsuit brought under the citizen suit provision of the federal Clean Air Act that air permits for the individual compressor stations should have been aggregated, creating a "major facility" for nitrogen oxides which required nonattainment new source review and which could not have been permitted through the streamlined GP-5 process.   Here’s the rub: PennFuture did not appeal any of the seven permits through normal administrative channels — through the Environmental Hearing Board — when notices of the permits were published in the Pennsylvania Bulletin.  PA DEP warned in an amicus brief that allowing this short-circuit of Pennsylvania’s administrative process would create great uncertainty for Pennsylvania businesses and communities.  In fact, the court noted in its opinion that each of the seven compressor stations have already been built.  Despite this fact, the federal court determined that it would consider PennFuture’s challenge to the issuance of the permits, relying on what the court viewed as the clear language of the citizen suit provision of the Clean Air Act.