ELR Citation: ELR 21500
No(s). 2:93-cv-186-WCO (N.D. Ga. Aug 23, 1994)

The court dismisses Clean Air Act (CAA) citizen suit claims that a plant owner violated the CAA by failing to obtain a prevention of significant deterioration (PSD) permit before building its plant and by exceeding the emissions levels of its 1988 permit and 1991 draft permit. The court first holds that it lacks jurisdiction over plaintiffs' claims because the claims are wholly past and incapable of repetition. The alleged PSD violations relate to actions occurring before the Georgia Environmental Protection Division issued the final PSD permit in May 1993 and were not occurring at the time the lawsuit was filed. The alleged PSD violations are incapable of repetition because the plant's construction was completed years before the present suit was brought. In addition, the plant owner received a final permit, so that any violations that occur now would no longer fall with the PSD claim. Plaintiffs' permit violation claim alleges only past violations because it does not mention any violations occurring after the final permit was issued. Plaintiffs allege that the plant owner consistently and repeatedly violated the Georgia regulatory nuisance standard, but they do not mention any specific violations. The court cannot determine if the alleged violations were repeated or plaintiffs are complaining about different violations that occurred over time. The law does not allow general vague allegations of repeated violations to satisfy the requirements of the CAA and the U.S. Supreme Court's decision in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 18 ELR 20142 (1987), that citizen suits must be based on current violations or on the same repeated violation. The alleged violation that must be repeated is the same violation occurring more than once. The requirement that the violation be repeated indicates that the courts will not allow citizens to file suits based on violations that have been corrected. The court also holds that plaintiffs' claims are moot, because they relate to events that occurred at least one year before plaintiffs filed suit and cannot be repeated. Finally, the court notes that plaintiffs' permit violation claim also can be dismissed because it alleges violations of a subjective standard incorporated from Georgia's air quality regulations into the plant owner's 1988 permit and the 1991 draft permit. The court holds that citizens cannot sue for alleged violations of a nonobjective standard such as this one, even where such a standard is incorporated into a permit.

Counsel for Plaintiffs
Steven Montalto
Friedman & Montalto
1050 Crown Pointe Pkwy, Ste. 1550, Atlanta GA 30338
(404) 395-1111

Counsel for Defendant
C. Christopher Hagy
Sutherland, Asbill & Brennan
999 Peachtree St. NE, Atlanta GA 30309
(404) 853-8000