ELR Citation: ELR 21405
No(s). 87-3474 (6th Cir. Sep 23, 1988)

The court holds that the Environmental Protection Agency (EPA) properly found the operator of a truck assembly facility liable for civil penalties under Clean Air Act §120 for volatile organic compound emissions from painting lines in violation of the Ohio state implementation plan (SIP). The court first holds that EPA's notice of noncompliance was sufficient to give EPA jurisdiction. Although the notice did not contain the technical support document and manual for penalty calculations required by EPA's regulations, the regulations provide no consequences for such violations. Further, EPA has jurisdiction under §120 to assess noncompliance penalties and that section requires only "reasonably specific notice of noncompliance." The court holds that the EPA administrative law judge (ALJ) reasonably determined that two painting lines were within the SIP's definition of "coating lines" even though the lines do not have ovens for drying or baking. The court holds that the ALJ reasonably found that three coating lines are not subject to the SIP's refinishing exemption, which EPA has interpreted to apply to body shops in the motor vehicle aftermarket and not newly manufactured trucks. The court holds that the ALJ reasonably determined that four lines that are used to paint plastic as well as metallic parts are not exempt from regulation, since EPA rationally concluded that lines that are used, at least in part, to paint metallic parts are subject to regulation. The court holds that the ALJ properly excluded evidence of technological and economic infeasibility at the liability hearing. Congress intended facilities to comply or shut down and due process concerns are satisfied by allowing infeasibility arguments at the penalty stage.

Counsel for Petitioner
Steven A. Smith
Kirkland & Ellis
200 E. Randolf Dr., 55th Fl., Chicago IL 60601
(312) 861-2072

Counsel for Respondent
Karen L. Egbert
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 786-4784

Before: KENNEDY and RYAN, Circuit Judges; and PECK, Senior Circuit Judge.