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Please see www.epa.gov/nsr for the latest information on EPA's New Source Review program.

December 23, 1987 Opinion in U.S. v. Louisiana-Pacific Corporation, D. Colo., Interpreting Certain PSD Regulations 2.27

This memo summarizes the October 30, 1987, opinion by Judge Arraj of the US District Court in Colorado regarding summary judgement and legal matters involved in the case of U.S. vs. Louisiana-Pacific Corporation (LPC). Judge Arraj denied motions for summary judgement, finding that a trial was needed to resolve questions of fact. Two legal issues are discussed. First, EPA can not sue LPC for the NOV of major modification rules, because the major source, upon which the major modification must be based, did not exist for more than 30 days after the NOV was issued (as required by Section 113(b)(2) of the Clean Air Act). EPA's second NOV to LPC for construction of a major stationary source must be heard at the trial. Second, state permit limitations can not be a defense for a source if they were not in effect when an alleged violation commenced. Further, restrictions on actual [annual] emissions, alone, are not appropriate as a consideration in determining a source's potential to emit.

Notebook Entries: 10.30A; 10.30; 10.51; 14.9; 3.29; 10.3; 22.8

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