ELR Citation: ELR 21461
No(s). 93-B-1749 (D. Colo. Jul 20, 1975)

The court holds that an environmental group in a Clean Air Act (CAA) §304 citizen suit may use a facility's continuous emissions monitoring (CEM) data to establish that the facility has violated the Colorado state implementation plan's (SIP's) 20-percent opacity limit. The group sued the facility's owners and operators based on data and reports from the facility's continuous emissions monitors indicating that the facility has exceeded the opacity limit at least 19,727 times in the preceding five years. The SIP specifies that Colorado Department of Health (CDH) officials are to measure visible emissions using "Method 9," which requires a CDH-certified observer to view the emissions under particular conditions. The SIP also requires owners and operators of a stationary source to have a CEM system for opacity measurement at the facility, to calibrate it daily, and to report the results to the CDH quarterly. The court first holds that the CEM data and reports constitute competent evidence of onging emissions violations, and rejects defendants' argument that only Method 9 observations can be used to establish liability for emissions violations. The SIP's CEM maintenance and reporting requirements alone impart a high degree of probative reliability to the CEM data and reports. Further, defendants do not genuinely dispute the relative reliability of CEM data over Method 9 data, and the CDH supports the use of such data to determine opacity violations. Moreover, forcing citizen suit plaintiffs to use Method 9 would require them to hire a certified observer who would have to either enter the facility's premises illegally or else ask permission to enter, thus forewarning the facility of an impending observation. The court notes that an entity that has notice of when an observation is to occur will be motivated to meet the compliance standard at that time. Allowing only Method 9 observations to prove CAA violations would afford the alleged violator a large measure of control over CAA enforcement by citizen groups. The court holds that nothing in the CAA, its implementing regulations, or the Colorado SIP binds citizens to a particular method of proving violations. The court concludes that the CEM data and reports provide undisputed evidence of the facility's continuous violation of the 20-percent opacity limit, and grants the group partial summary judgment.

The court next holds that the facility's operation for two weeks when one-half of its electrostatic precipitator (ESP) was dysfunctional did not constitute a "modification" for which defendants should have acquired a permit. When the ESP failed, defendants immediately removed it and sent it for repair. Once it was returned and installed approximately 19 days later, the unit was operating in the same manner as before. The court holds that the removal, repair, and replacement of the ESP did not constitute a "physical change" as defined by the CAA, nor did it constitute a change in the method of operation. The court thus denies the group's motion for summary judgment on the claim that defendants modified the facility without a permit. The court also holds, however, that defendants are liable for excess emissions resulting from the ESP's failure because they did not assert the "upset defense" to the claims that they violated the opacity limit. Finally, the court grants the group's motion for summary judgment on its claim that defendants have failed to operate the facility in a manner consistent with good air pollution control practices for minimizing emissions. Despite disputed factual issues regarding why defendants decided not to install new pollution control technology at the facility, the CEM data proves that defendants have continuously violated the opacity limitation from 1988 to the date of this lawsuit, and defendants' own internal memoranda concerning the need for improved technology at the facility corroborate this evidence.

Counsel for Plaintiff
John M. Barth
2033 11th St., Ste. 6, Boulder, CO 80302
(303) 442-0888

Counsel for Defendants
Howard Kenison
Kutak & Rock
717 17th St., Ste. 2900, Denver CO 80202
303) 297-2400