Citizens for Pennsylvania's Future v. Ultra Resources, Inc.

Filing 35

MEMORANDUM and OPINION - For the foregoing reasons, the Court will deny Defendant Ultra's motion to dismiss for lack of subject-matter jurisdiction and will also deny Ultra's motion to abstain. A separate order follows. Signed by Honorable Robert D. Mariani on 9/24/12. (jfg)

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CITIZENS FOR PENNSYLVANIA'S
FUTURE,
Plaintiff

v.

4:11·CV·1360
(JUDGE MARIANI)

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ULTRA RESOURCES, INC.,

Defendant
MEMORANDUM OPINION

I. Introduction

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Plaintiff Citizens for Pennsylvania's Future ("PennFuture") filed this citizen suit against
Defendant Ultra Resources, Inc. ("Ultra") for alleged violations of the Clean Air Act ("CAA"), 42
U.S.C. §§ 7401 et seq. PennFuture contends that Ultra built a major facility which produces
nitrogen oxide (liNOx") emissions without obtaining the appropriate nonattainment New Source
Review ("NNSR") permit under the state regulations contained in 25 PA. CODE 127(E). Ultra
responds that it properly applied for and received less stringent perrnits (GP-5s) from the
Pennsylvania Department of Environmental Protection ("PADEP"). In issuing these GP-5s,
PADEP decided to issue a permit to each compressor station as an individual NOx emitting
facility instead of aggregating the facilities. Had PADEP aggregated the facilities, PennFuture
argues, Ultra would have needed a major source permit.
Ultra filed a motion to dismiss for lack of subject-matter jurisdiction (Doc. 9), arguing that
the proper forum for PennFuture to challenge the issuance of the GP-5 permits was before the
Pennsylvania Environmental Hearing board ("EHB"). In support of its argument, Ultra says that

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if this Court were to recognize PennFuture's ability to bring this citizen suit, it would "allow
citizens' groups to circumvent the established process and procedures under Pennsylvania law
for challenging PAOEP's permitting decisions." (Doc. 16, at 3). The motion has been fully
briefed and is ripe for review.

II. Statutory Background
Though it enacted the CAA, Congress has found "that air pollution prevention ... and
air pollution control at its source is the primary responsibility of States and local governments"
42 U.S.C. §7401 (a)(3), with assistance and guidance from the federal government. Id. at
7401 (a)(4). That is, each state, not the Environmental Protection Agency ("EPA"), issues any
and all permits sought. Thus, consistent with the aims of the CAA, each state must submit to
the EPA for review and approval a state implementation plan ("SIP") "which provides for
implementation, maintenance, and enforcement of ... standard[s] in each air quality control
region ... within such State." 42 U.S.C. § 7410(a)(1). A state agency must be designated to
review applications for major source construction permits under Part 0,1 and each SIP must
use the "specific definitions" established in EPA regulations unless the state's definitions are
"more stringent, or at least as stringent" as the federal definitions. 40 C.F. R. 51.165(a)(1).
To comply with federal standards, Pennsylvania enacted the Air Pollution Control Act
("APCA"), 35 P.S. §4001 et seq. The APCA delegates authority to the Environmental Quality
Board ("EQB") to develop rules and regulations to implement the provisions of the CAA,2 and

I See 42 U.S.C. §§ 7410(a), 7502(b) & (e), 7503; 40 C.F.R. § 52.2020 (Pennsylvania's SIP).
235 P.S. § 4005.

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PADEP evaluates applications and issues the appropriate air permits for constructions of new
emission sources or for modifications to existing emissions sources. 3
PennFuture has filed suit under Section 304 of the CAA, which provides:
[A]ny person may commence a civil action on his own behalf - . . . (3) against
any person who proposes to construct or constructs any new or modi'fled major
emitting facility without a permit required under ... part D of subchapter I of this
chapter (relating to nonattainment)4 or who is alleged to have violated (if there is
evidence that the alleged violation has been repeated) or to be in violation of any
condition of such permit.
42 U.S.C. § 7604(a)(3) ("Section 304"). Anyone proposing to construct a "major emitting"
source of pollutants must obtain the proper permit before construction. s The CAA defines a
"major emitting facility" as found in Section 304 as "any stationary facility£> or source of air
pollutants which directly emits, or has the potential to emit, one hundred tons per year or more
of any air pollutant." 42 U.S.C. § 76020).7
Defendant's compressor stations emit NOx•

Under the applicable state NNSR

regulations, an NNSR permit is required for the construction of a new major facility that emits or
35 P.S. §§ 4004 and 4006.1.
"The term 'nonattainment area' means, for any air pollutant, an area which is designated 'nonattainment'
with respect to that pollutant within the meaning of section 7407(d) of this title." 42 U.S.C. § 7501(2).
Pennsylvania has been designated a nonattainment area and is therefore subject to the requirements of 42 U.S.C. §§
7501-7515. Anyone seeking to construct and operate a major source in a nonattainment area in Pennsylvania must
comply with the preconstruction permitting requirements under the NNSR program. See 35 P.S. § 4006.1 (a) ("No
person shall construct, assemble, install or modifY any stationary air contamination source, or install thereon any air
pollution control equipment or device unless such person has applied to and received written plan approval from the
department to do so."); 25 PA. CODE § 127.201(a) ("A person may not cause or permit the construction or
modification of an air contamination facility in a nonattainment area or having an impact on a nonattainment area
unless the Department or an approved local air pollution control agency has determined that the requirements ofthis
subchapter [Subchapter E] have been met."). Subchapter B deals with Prevention of Significant Deterioration
("PSD") standards that are not at issue in this case, and therefore, will not be discussed.
5 See 42 U.S.C. §§ 7475(a), 7502(c)(5); 40 C.F.R. § 51.165(a)(l).
6 A "facility" is defined as "[an] air contaminant source or a combination of air contaminant sources located
on one or more contiguous or adjacent properties and which is owned or operated by the same person under
common control." 25 PA. CODE § 121.1.
1 See also 40 C.F.R. § 5 1.1 65(a)(I)(iv)(A)(2)(ii); PADEP Guidance for Performing Single Stationary
Source Determinations for Oil and Gas Industries, Doc. No. 270-0810-006 (Oct. 12,2011) ("PADEP Guidance").
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has the potential to emit 100 tons per year or more of NOx. 25 PA. CODE § 127.201. In lieu of
NNSR permits, PADEP may also issue less stringent general plan approvals and general
permits,S but only if the source is not subject to the NNSR requirements in Subchapter E. Id.
Otherwise, an owner or operator must undergo the more onerous process of obtaining plan
approval and receiving an operating permit on a case-by-case basis. Id.
Among the general permits discussed above, PADEP developed GP-5, which
authorizes the construction and operation of natural gas production facilities. Like other
general permits, a GP-5 may not be used if the construction or modification for which
authorization is sought triggers NNSR requirements under Subchapter E. PADEP issued
seven GP-5s to Ultra to construct and operate various compressor stations and associated
equipment, which Ultra built beginning in 2009. (Comp!., mJ 2, 38-39, 45-46, 52-53, 59-60, 66­
67,73-74,80-81). Each of the seven compressor stations emits less than 100 tons per year of
NOx, so Ultra did not apply for a Part Dpermit.
Plaintiff argues that the seven compressor stations should have been aggregated as a
single source, rendering GP-5s for Ultra's facilities inappropriate. PADEP must determine
whether afacility or facilities are a "single source" when "an air contamination source or
combination of air contamination sources located on one or more contiguous or adjacent
properties" is or are "owned and operated by the same person under common controL" 25 PA.

8 See 25 PA. CODE § 127.611. PADEP may issue a "general plan approval or a general permit for any
category of stationary air contamination source if the department determines that the sources in such category are
similar in nature and can be adequately regulated using standardized specifications and conditions." 35 P.S. §
4006.1(1).

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CODE § 127.204(a).9 If the emissions from multiple sources are aggregated as a single source
and those emissions reach major source thresholds, they would be considered a "single
source" subject to Part 0 permit requirements under the NNSR and therefore ineligible for a
GP-5.
The APCA specifically provides: "Any person aggrieved by an order or other
administrative action of [PADEP] issued pursuant to this act ... shall have the right, within thirty
(30) days from actual or constructive notice of the action, to appeal the action to the hearing
board ...." 35 P.S. § 4010.2; see a/so 25 PA. CODE § 1021.52(a)(2). Failure to timely appeal
to the EHB precludes further challenges to PADEP's action. See 35 P.S. § 7514(c) ("If a person
has not perfected an appeal in accordance with the regulations of the [EHB], the department's
action shall be final as to the person.").
Parties dissatisfied with final decisions of the EHB have the right to appeal to the
Commonwealth Court and, from there, to the Pennsylvania Supreme Court. 42 PA. CONS. STAT.
§ 763(a){1); 42 PA. CONS. STAT. §§ 723-724. Plaintiff, however, did not seek to appeal any of

PADEP's seven permitting decisions to the EHB.10 Instead, Plaintiff filed this Complaint in
federal district court after Ultra constructed its facilities pursuant to PADEP's authorizations.
Thus, Ultra argues that PennFuture has forfeited its right to seek judicial redress by failing to
appeal any of PADEP's permitting decisions to the EHB.

9 In late 2011, PADEP issued guidance for detennining when sources should be considered contiguous or
adjacent for the purpose of detennining whether aggregation is appropriate. See PADEP Guidance, supra note 7.
10 It appears that PADEP duly published its seven pennitting decisions in the Pennsylvania Bulletin as
required by 25 PA. CODE §§ 127 .61l(b), (c), 127.612. (Zaman Aff., Doc. 30, App. C; at ~ 10). At any rate,
PennFuture does not argue that PADEP failed to put the public on notice regarding PADEP's pennitting decisions in
this case.

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III. Analysis
a. Subject-Matter Jurisdiction
When presented with a motion to dismiss attacking the factual basis for subject-matter
jurisdiction, a district court is not bound to accept the allegations in the complaint as true, but is
instead "entitled to independently evaluate the evidence to resolve disputes over jurisdictional
facts." S.R.P. ex. reI. Abunabba v. U.S., 676 F.3d 329, 332 (3d Cir. 2012) (citing Mortensen v.
First Fed. Say. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977) ("the district court is 'free to

weigh the evidence and satisfy itself as to the existence of its power to hear the case.")). The
party asserting the court's jurisdiction bears the burden of proving such jurisdiction exists.
Nuveen Mun. Trust ex reI. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P. C.,

No. 10-4633, 2012 WL 3518015, at *6, -- F.3d - (3d Cir. 2012).
As an initial matter, the Court concludes that it has jurisdiction to hear this case based
on a plain reading of Section 304 and two cases to which Plaintiff cites in which the courts
found they had subject-matter jurisdiction under Section 304(a)(3):
[AJny person may commence acivil action on his own behalf- ... (3) 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) or who is alleged to have violated (if there is
evidence that the alleged violation has been repeated) or to be in violation of any
condition of such permit.
42 U.S.C. § 7604(a)(3) (emphasis added).11

11 Because the language of the statute is plain on its face, the Court need not look any further to discern
Congress's intent. Alston v. Countrywide Financial Corp., 585 F.3d 753, 759 (3d Cir. 2009) ("When the statute's
language is plain, the sole function of the courts--at least where the disposition required by the test is not absurd-is
to enforce it according to its terms.") (internal citations and quotation marks omitted)). Based on a Senate

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In Ogden Projects v. New Morgan Landfill Co., the defendant had obtained a solid
waste landfill permit from PADER in lieu of an air contamination permit. 911 F. Supp. 863, 967­
68 (E.D. Pa. 1996). That is, no air permit had been issued at all. Neither had the solid waste
permit required the defendant to obtain a Part Dpermit.12 The primary basis on which the court
concluded it had subject-matter jurisdiction was the plain language of Section 304(a)(3).
Because the plaintiff contended that the defendant had failed to obtain a Class Dpermit before
constructing its landfill, the court concluded it had jurisdiction. Likewise, PennFuture claims
that Ultra failed to obtain a Class Dpermit before constructing its compressor stations, properly
alleging facts (which Ultra does not dispute) from which the Court can conclude it has
jurisdiction to hear the case.
Similarly, in Weiler v. Chatham Forest Products, Inc., the defendant had not obtained a
Part D air permit for major source facilities. 392 F.3d 532 (2d Cir. 2004). Instead, it had
obtained a "synthetic rninor source permit" because it claimed the New York Department of

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Environmental Conservation ("NYDEC") had determined that a major source permit was
Committee Report, though, Ultra argues that Congress intended for citizen suits to exhaust administrative remedies
before filing in federal court. The report does not support Ultra as much as it believes it does:

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in order to challenge the legality of a permit which a State has actually issued, or proposes to
issue, under section 110(g) [proposed Part C to the CAA), however, a citizen must seek
administrative remedies under the State permit consideration process, or judicial review of the
permit in State court.
S. REp. No. 94-717, at 82 (1976) (Comm. Rep.). Even were the Court to accept the argument that exhaustion of
administrative remedies was required, this requirement would not apply here because PADEP has neither "actually
issued" nor "propose[d] to issue" either a Part C or D permit to Ultra. Instead, it has expressly determined that GP­
5s not covered by Section 304 - are sufficient. Furthermore, a Conference Report dated later in time than the
Committee Report states "[n)o administrative or procedural requirements ... are imposed". S. REp. No. 94-1742, at
115 (1976) (Conf. Rep.). Therefore, the Court rejects Ultra's argument, based on legislative history, that Congress
intended for citizens to exhaust administrative remedies before initiating suit in federal court.
12 The parties stipulated to a statement of facts which they submitted to the court for non-jury resolution.
Ultimately, the court concluded that it had subject-matter jurisdiction over the case and ruled in favor of the
defendant on the merits.

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unnecessary. The court held that simply because alternative enforcement mechanisms were
available in state court did not foreclose the existence of afederal cause of action.
Furthermore, Weiler had clearly met its pleading requirements because, as in Ogden and here,
it alleged that Chatham had failed to obtain a Part Dpermit. The Court was not persuaded by
Chatham's arguments that Weiler was attempting to collaterally attack NYDEC's decision to
issue asynthetic minor permit instead of a Part Dpermit. "[A] state determination that a
prospective source of air pollution is not a major emitting facility does not prevent a private
plaintiff from bringing a suit seeking to enjoin the construction of the facility pursuant to ... §
7604(a)(3)." Id. at 539.
Notably, Natural Resources Defense Council, Inc. v. BP Products North America, Inc., a
case on which Ultra relies in its arguments in favor of Burford abstention, followed the Second
Circuit's decision in Weiler. No. 2:08·CV·204, 2009 WL 1854527 (N.D. Ind. June 26,2009). In
BP Products, the court recognized the similarities between its case and Weiler, noting that BP
had obtained "only ... astate law minor permit, and not one required under Part Cor D." Id. at
*8. In its analysis, the court said "the Second Circuit essentially reviewed the allegations of the
complaint and determined that they claimed the defendant proposed to construct a major
emissions facility without a permit under parts Cor D. That was enough for jurisdiction." Id.
(internal citations omitted). Thus, the Court is persuaded that it has subject-matter jurisdiction
over this case.

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Defendant relies on a handful of cases for the proposition that PennFuture is collaterally
attacking the DEP's decision to issue a minor source permit rather than a major source permit,
but these cases are inapposite.
In Sierra Club v. Wellington Dev.-WVD~ LLC, several citizen groups challenged
PADEP's approval of Wellington's application to build a power plant. No. 08-293, 2008 WL
2048332 (W.D. Pa. May 13, 2008). The approval provided that the perrnit expired if Wellington
did not commence construction within eighteen months of the permit's issuance.
Consequently, PADEP determined that Wellington had complied with all relevant statutes and
the terms of the permit itself. The plaintiffs appealed PADEP's approval of the plan to the EHB,
but the EHB dismissed the appeals. On appeal to the Commonwealth Court of Pennsylvania,
the court affirmed EHB's dismissal of the appeal, and the Supreme Court of Pennsylvania
denied leave to appeal. After failing to succeed in state court, the plaintiffs then filed suit in
federal court under Section 304(a)(3) of the CAA alleging that the permit was invalid because
Wellington had not commenced construction within eighteen months of the permit's issuance.
However, the court found that the plaintiffs were collaterally attacking the permit because
PADEP had already determined that Wellington had commenced construction within eighteen
months of the permit's issuance. The court thus dismissed the case for lack of subject-matter
jurisdiction. There is no parallel situation here.
In Defenders of Conewango Creek v. Echo Devs., LLC, the same federal court found
that the plaintiff had failed to challenge the permits at issue with the EHB but had instead come
to federal court. No. 06-242E, 2007 WL 3023927 (W.D. Pa. Oct. 12, 2007). The court
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concluded that the counts at issue in the motion to dismiss for lack of subject~matter jurisdiction
all contained allegations that Echo had failed to meet the terms of the permits themselves.
After reviewing the First Amended Complaint and parties' arguments, it is
evident that the Plaintiff is in those counts challenging 'final Pennsylvania~issued
permits. Indeed, this tug~of~war between the parties about the Pennsylvania
permits, when they were issued, under what circumstances, with what
knowledge, with what coverage, and using what definitions, perfectly illustrates
that such challenges are properly brought in the Pennsylvania courts, with the
state able to defend the permit decision and terms, and not here in federal court,
a court of limited jurisdiction.

Id. at *9. Thus, the plaintiffs were not claiming that Echo had failed to obtain a permit required
by Section 304(a}(3), but rather, that it was not complying with the terms of the permits it had
received. This was a blatant collateral attack on the permits and should have been pursued in
state court rather than federal court. 13
In CleanCOALition v. TXU Power, 536 F.3d 469 (5th Cir. 2008), the Fifth Circuit affirmed
the district court's dismissal of the case based on the district court's interpretation of Section
304(a)(3). To the district court, the CAA authorizes citizen suits when an "entity proposes to
construct or constructs a facility without a permit Whatsoever." Id. at 478~79. The Fifth Circuit
explicitly rejected the plaintiff's proposed interpretation of Section 304{a)(3) of "without a permit

that complies with the CAA." Id. at 479 n.13. It "decline[d] to rewrite the plain language of the
statute," especially because TXU had applied for and obtained a state permit after the plaintiff
had initially filed suit. Id. at 479. Thus, the Court concluded that Section 304(a)(3) "does not
13 The Court notes that Section 304 provides that a citizen group may file suit "against any person who ...
is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of
any condition ofsuch {Part DJ permit." (emphasis added). It appears that the plaintiff had sufficiently alleged that
the defendant was violating the condition of its permit, but because there is no allegation in this case that Ultra
violated a condition of a Part 0 permit, that particular portion of Defenders ofConewango Creek has no application
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authorize preconstruction citizen suits against facilities that have either obtained a permit or are
in the process of doing so." Id. In reaching this conclusion, the Fifth Circuit cited Ogden for the
proposition that Section 304(a)(3) "authorizes citizen suits when facility is proposing to
construct plant without a permit at aiL" Id.
Nationa/ Parks Conservation Association v. Tennessee Valley Authority, 175 F. Supp.
2d 1071, 1078 (ED. Tenn. 2001) is even less helpful to Ultra's cause. There, the court
dismissed the case for lack of subject-matter jurisdiction because the plaintiff had failed to
comply with the notice provisions of the CAA. Alternatively, it concluded that the plaintiff was
collaterally attacking the SIP, not a permit, of Tennessee's Department of Environment and
Conservation (TDEC), which could not serve as the basis for acitizen suit under 304(a)(3). Id.
at 1073. Instead, it said that "there is no citizen suit provision allowing a citizen plaintiff to
challenge an emission standard or limitation, and that is what plaintiff here seeks to do. Quite
simply, plaintiffs dispute is with the State of Tennessee through TDEC for issuing these
permits" without receiving approval from the EPA beforehand. Id. at 1079.
Because the Court finds the language of Section 304 clear and the reasoning in Ogden
and Weiler persuasive, while Ultra's cited cases are inapplicable, it determines it has subject­
matter jurisdiction. Nonetheless, the Court is disturbed by PennFuture's inaction during the
state administrative appeals period, especially in light of Ultra's representation that it has
completed construction of its seven compressor stations. (Doc. 16, at 3). Defendant argues
that PennFuture should have exhausted its state and administrative remedies before
proceeding in federal court. 35 P.S. § 4010.2.; 25 PA. CODE § 1021.52(a)(2). Though Weiler
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clearly favors Plaintiff's position, the Second Circuit inserted acautionary footnote qualifying its
opinion:
We note that we have ruled in the section 304(a)(1) context that plaintiffs must
exhaust administrative and state judicial remedies before proceeding in federal
court. A similar requirement may apply in the section 304(a)(3) context. But
because the exhaustion issue is not before us, we do not here rule whether
plaintiffs are required to exhaust their permit challenge in the state courts.
Weiler, 392 F.3d at 538 n.8 (internal citations omitted).

If the Court were to find an exhaustion requirement in Section 304{a){3), PennFuture
would be left without a remedy because the 30-day window in which to appeal any PADER
decision to the EHB has lapsed. (See Zaman Aff., Doc. 30, App. C; 35 P.S. § 7514(c)). On the
other hand, if the Court does not find an exhaustion requirement, the decision would create
perverse incentives for any citizen group to intentionally miss its window to appeal to the EHB
and come directly to federal court. In BP Products, though the court ultimately decided to
abstain on Butford and Colorado River grounds, it essentially read an exhaustion requirement
into the statute by declining to exercise jurisdiction, which would allow citizen groups "to fight
the battle on two fronts." This struck the court "as terribly inefficient" and unfair because it gave
"opponents of the permit multiple bites of the apple." BP Products, 2009 WL 1854527, at *11.
Nevertheless, the Court will not read in an exhaustion requirement where there is none
provided, especially in light of the congressional Conference Report which stated no
administrative or procedural requirements are imposed. 14 Because the plain language of
Section 304(a)(3) gives PennFuture the right to bring a cause of action directly to federal court

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See supra note 11.
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as recognized by Ogden and Weiler, the Court finds it has subject-matter jurisdiction to hear
the case. Ultra argues, however, that even if the Court has jurisdiction, it should abstain from
exercising that jurisdiction due to federalism concerns.
b. Abstention
Federal courts have a "virtually unflagging obligation to exercise the jurisdiction given
them." Baykeeper v. NL Industries, Inc., 660 F.3d 686 (3d Cir. 2011) (citing Colo. River Water
Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236,47 L. Ed. 2d 483
(1976)). The framework for determining when abstention under Burford15 is proper has been
set forth by the Supreme Court as follows:
Where timely and adequate state-court review is available,16 a federal court
sitting in equity must decline to interfere with the proceedings or orders of state
administrative agencies: (1) when there are difficult questions of state law
bearing on policy problems of substantial public import whose importance
transcends the result in the case then at bar; or (2) where the exercise of federal
review of the question in a case and in similar cases would be disruptive of state
efforts to establish a coherent policy with respect to a matter of substantial public
concern.

15 Burfordv. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098,87 L. Ed. 1424 (1943). There, the Court declined
to exercise its jurisdiction to hear a challenge to a Texas Railroad Commission ("TRC") permit allowing the
defendant to drill for oil. 319 U.S. at 316-17. Texas had established TRC to address issues related to oil extraction
in the absence of any significant federal regulation. See id. at 318-20 ("The federal government, for the present at
least, has chosen to leave the principal regulatory responsibility with the states, but does supplement state control.").
TRC evaluated permit applications and its decisions were subject to review by multiple state courts. !d. at 325-26.
However, judicial review ran through one county only to assure uniformity. !d. at 326-27. The Court concluded
that abstention was necessary because "[t]he very 'confusion' which the Texas legislature and Supreme Court feared
might result from review by many state courts of the Railroad Commission's orders has resulted from the exercise of
federal e~uity jurisdiction." Id. at 327.
6 There is little doubt that timely and adequate state-court review is available with respect to PADEP's
permitting decisions.

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New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.

Ct. 2506, 105 L. Ed. 2d 298 (1989) ("NOPSI") (internal quotation marks and citations omitted).17

The court in BP Products found that there were no difficult questions of state law18
bearing on the matter, so if abstention were proper, it must be on the grounds that the exercise
of jurisdiction would disrupt state efforts to establish a coherent policy with respect to a matter
of substantial public concern. Like the court in BP Products, this Court concludes that the issue
of whether PADEP should have aggregated the seven Ultra compressor stations before issuing
the appropriate permit(s) is not a difficult question of state law. Therefore, the Court must
determine whether the second prong of Burford applies and must examine:
(1) whether the particular regulatory scheme involves a matter of substantial
public concern; (2) whether it is the sort of complex technical regulatory scheme
to which the Burford abstention doctrine usually is applied; and (3) whether
federal review of a party's claims would inteliere with the state's efforts to
establish and maintain acoherent regulatory policy.
Hi Tech Trans, LLC v. New Jersey, 382 F.3d 295,304 (3d Cir. 2004).
The primary basis for the decision to abstain in BP Products, though, was the existence
of parallel state court proceedings. Thus, it concluded, "the state gets to answer [the] question
[of whether a Part Cor 0 permit was required] first." BP Products, 2009 WL 1854527, at *11.
17 In BP Products, the court abstained on both Burford and Colorado River grounds, but in this case, only
Burford is relevant because there are no parallel state court proceedings.
18 PennFuture argues that federal law controls here, and thus, the fIrst Burford test is inapplicable. (EPA
Comments on PADEP Guidance, Doc. 27, App. C, ''the defInition of 'source' as used in the SIP is a matter of
federal law."). Ultra argues that even the EPA's own letter to PADEP indicates that "PADEP retains the discretion
to 'consider the factors relevant to the specific circumstances of the permitted activities. '" (Letter dated Nov. 21,
2011, Doc. 28, Ex. A); see also Oil and Natural Gas Sector: New Source Performance Standards and National
Emissions Standards for Hazardous Air Pollutants Reviews, Proposed Rule, 76 Fed. Reg. 52,738, 52,751 (Aug. 23,
2011) (same). In light of Pennsylvania's statutory and regulatory framework outlined above and the cases on which
the parties rely which also concluded that this was a matter of state law (see, e.g., Ogden, BP Products), the Court
concludes that Pennsylvania law will control whether PADEP properly issued GP-5 permits in lieu of Part D
permits.

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"And while the issues may ultimately wind up in federal court again, if they do, then at least the
federal court will have the benefit of the full state analysis." Id. at *12. No such parallel
proceedings exist here, rendering BP Products of little applicability with respect to the
abstention analysis in this case.
Undoubtedly, the air permitting regulatory scheme is a matter of substantial public
concern, and it may even be the type of complex technical regulatory scheme to which BUfford
abstention is normally applied. But based on the parties' agreement that these types of
permitting decisions must be made on acase"by-case basis, the Court does not see how its
participation in this case would interfere with the state's efforts to maintain acoherent
regulatory policy. PADEP's decision to issue a certain type of permit to Ultra should have little
to no bearing on its decision to issue an air permit to another entity, espeCially if that entity is
located in another region of the state.
Once again, Ultra's cited cases are inapposite. Palumbo v. Waste Technologies,
Indus., 989 F.2d 156 (4th Cir. 1993) involved aclaim brought under the Resource Conservation

and Recovery Act, 42 U.S.C. §§ 1691 et seq. which explicitly provided for review of the
administrator's action "by the Circuit Court of Appeals of the United States for the Federal
judicial district in which such person resides." No such statutory review provision exists in
Section 304(a)(3) of the CAA. Similarly, in Ellis v. Gallatin Steel Co., 390 F.3d 461 (6th Cir.
2004), Sugar/oaf Citizens Ass'n v. Montgomery County, 33 F.3d 52 n.9 (4th Cir. 1994), and
Jamison v. Longview Power, LLC, 493 F. Supp. 2d 786 (N.D. W. Va. 2007), the relevant state

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agencies had either issued or were in the process of issuing Part Cor Dpermits, bolstering the
argument that federal intervention would add only confusion to the mix.
As further support for its argument for abstention, Ultra states that there are currently
two cases pending19 before the EHB on the precise question of whether the emissions from an
entity's facilities should be aggregated or examined separately when PADEP considers
applications for air contamination source permits. However, as PennFuture points out, these
permitting decisions should be made on a case-by-case basis,20 thereby severely limiting any
sort of precedential value one determination may have on another.21 Furthermore, Plaintiff
notes that neither of the two cases pending before the EHB involve either of the parties in this
case nor the specific region (e.g., Marcellus Shale), further reducing the value of the outcome
of these two cases.
Having surveyed the existing case law on the matter, the Court recognizes that it is
difficult to harmonize all of the cases cited above. In the absence of controlling precedent from
the Third Circuit, the Court must be guided by the plain language of Section 304, the elements
necessitating abstention set forth of Burford and its progeny, and its own considered judgment.
Though Ultra argues that PennFuture deliberately avoided Pennsylvania's administrative
appeal requirements, the Court's view is it would be improper to abstain from exercising

19 Group Against Smog and Pollution v. DEP, EHB Docket No. 2011-065-R; Clean Air Council v. DEP,
EHB Docket No. 2011-072-R.
20 PADEP Guidance for Performing Single Stationary Source Determinations for Oil and Gas Industries,
Doc. No. 270-0810-006 (Oct. 12,2011).
21 In its amicus brief, PADEP asserts that it is in the process of establishing technical guidance on single
source determinations. (Doc. 30, at 22). However, given the fact-specific nature of each permit application, such
guidance would be oflittle use generally.

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jurisdiction when Congress has clearly established a cause of action for citizen suits in Section
304 of the CAA.
IV. Conclusion
For the foregoing reasons, the Court will deny Defendant Ultra's motion to dismiss for
lack of subject-matter jurisdiction and will also deny Ultra's mot'
follows.

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