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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Case 4:17-cv-00612-RCC Document 1 Filed 12/20/17 Page 1 of 16 1 ELLEN M. MAHAN 2 Deputy Section Chief Environmental Enforcement Section 3 Environment and Natural Resources Division 4 JAMES R. MacAYEAL (D.C. Bar # 474664) Senior Counsel 5 Environmental Enforcement Section 6 United States Department of Justice P.O. Box 7611, Washington, D.C. 20044-7611 7 Telephone: (202)616-8777 8 j amie.macayeal@usdoj. gov 9 ELIZABETH A. STRANGE 10 Acting United States Attorney JANET MARTIN(Az Bar # 6014) 11 Civil Chief 12 District of Arizona 405 W. Congress Street, Suite 4800 13 Tucson, AZ 85701-5040 14 Attorneys for Plaintiff United States 15 16 UNITED STATES DISTRICT COURT 17 FOR THE DISTRICT OF ARIZONA 18 UNITED STATES OF AMERICA, 19 Plaintiff, 20 CASE NO. 21 v. COMPLAINT 22 APACHE NITROGEN PRODUCTS, 23 INC., 24 Defendant. 25 The United States of America, by authority of the Attorney General of the 26 United States and through the undersigned attorneys, acting at the request of the 27 Administrator of the United States Environmental Protection Agency ("EPA"), alleges 28 as follows: Case 4:17-cv-00612-RCC Document 1 Filed 12/20/17 Page 2 of 16 1 NATURE OF ACTION 2 1. This is a civil action pursuant to Section 113(b) of the Clean Air Act 3 (the "Act"), 42 U.S.C. § 7413(b). 4 2. The United States seeks civil penalties and injunctive relief against 5 Defendant Apache Nitrogen Products, Inc.("Apache" or "ANPI")for violating the 6 Arizona State Implementation Plan (the "Arizona SIP"), including the requirements 7 for the Prevention of Significant Deterioration ("PSD"), as set forth in the Arizona 8 Administrative Code("AAC") and for violating, a federal standard of performance 9 for new sources, 40 C.F.R. Part 60 Subpart G, first promulgated in 1974 under 10 Section 111 of the Act, 42 U.S.C. § 7411 (the "NSPS"). 1 1 3. The violations occurred at a facility in Benson, Cochise County, `~~I Arizona. 13 JURISDICTION, AUTHORITY AND VENUE 14 4. This Court has jurisdiction over the subject matter of this action and 15 Apache pursuant to 28 U.S.C. §§ 1331, 1345, and 1355, and Section 113(b) of the 16 Act, 42 U.S.C. § 7413(b). 17 5. The United States Department of Justice has authority to bring this civil 18 enforcement action under 28 U.S.C. §§ 516 and 519, and under Section 305 of the 19 Act, 42 U.S.C. § 7605. 20 6. Because the alleged violations occurred in Cochise County, Arizona, 21 venue for this civil action properly lies in this District under Section 113(b) of the 22 Act, 42 U.S.C. § 7413(b). 23 NOTICE 24 7. The United States has notified the State of Arizona of the 25 commencement of this action pursuant to Section 113(b) of the Act, 42 U.S.C. § 7413(b). Notice has been given to the Arizona Department of Environmental Quality f~XI ("ADEQ"). 2 Case 4:17-cv-00612-RCC Document 1 Filed 12/20/17 Page 3 of 16 1 8. EPA served a Notice of Violation("NOV") entitled "Finding and 2 Notice of Violation" on Apache for violations alleged in this complaint, and other 3 alleged violations, in 2012 and served an amended NOV in 2013. 4 THE DEFENDANT 5 9. Apache is an Arizona corporation with its principal place of business at 6 1436 S. Apache Powder Road in Cochise County, Arizona. 7 10. Apache owns and operates a nitrogen products manufacturing facility at 8 1436 S. Apache Powder Road (the "Facility"). Apache manufactures nitric acid, 9 prilled ammonium nitrate, liquid ammonium nitrate, and various substances used as 10 fertilizers at the Facility. The Facility includes two nitric acid manufacturing units 11 (ammonia oxidation plants) called "AOP-3" and "AOP-4". 12 1 1. Defendant Apache is a "person" as defined by Section 302(e) of the 13 Act, 42 U.S.C. § 7602(e). 14 STATUTORY AND REGULATORY FRAMEWORK 15 Prevention of Significant Deterioration 16 12. The primary purpose of the Clean Air Act is to protect and enhance the 17 quality of the nation's air resources so as to promote the public health and welfare 18 and the productive capacity of its population. 42 U.S.C. § 7401(b)(1). Section 19 108(a) of the Act, 42 U.S.C. § 7408(a), requires the Administrator of EPA to 20 identify and prepare air quality criteria for each air pollutant, emissions of which 21 may endanger public health or welfare, and the presence of which results from 22 numerous or diverse mobile or stationary sources. For each such "criteria" pollutant, 23 Section 109 of the Act, 42 U.S.C. § 7409, requires EPA to promulgate national 24 ambient air quality standards("NAAQS") to protect the public health and welfare. 25 13. Section 110 of the Act gives the states the responsibility for attaining 26 and maintaining the NAAQS through a State Implementation Plan ("SIP"), 27 consisting of rules and regulations submitted to the EPA for approval. 42 U.S.C. § 28 7410. EPA's criteria for approving SIPS are contained in 40 C.F.R. Part 51. These 3 Case 4:17-cv-00612-RCC Document 1 Filed 12/20/17 Page 4 of 16 1 regulations implement the general standards for SIP approval established by 2 Congress in 42 U.S.C. § 7410(a)(2)(A)-(K). Once EPA decides that a SIP meets 3 these criteria, it codifies its decision in 40 C.F.R. Part 52. Once EPA approves a SIP, 4 the SIP becomes enforceable as federal law. 42 U.S.C. § 7413. 5 14. Under Section 107(d) of the Clean Air Act, 42 U.S.C. § 7407(d), each 6 state is required to designate areas within its boundaries in which air quality is better rI than the national ambient air quality standard for each listed pollutant, those areas in 8 which it is worse, and those areas in which it cannot be classified due to insufficient 9 data. The Administrator is thereafter required to promulgate a list of such areas. An 10 area which meets the national ambient air quality standards for a particular pollutant 11 is termed an "attainment" area. An area that does not meet the national ambient air 12 quality standards is termed a "nonattainment" area. 13 15. Under Section 110(a)(2)(D) of the Clean Air Act, 42 U.S.C. § 14 7410(a)(2)(D), each SIP must include, inter alia, a program to provide for the 15 regulation of the modification, construction, and operation of any stationary source 16 of air pollution, including a permit program as required under Part C of the Clean 17 Air Act, 42 U.S.C. §§ 7470-7479, relating to prevention of significant deterioration 18 ("PSD")in attainment areas. The Part C requirements are designed to protect public 19 health and welfare, to assure that economic growth will occur in a manner consistent 20 with the preservation of existing clean air resources, and to assure that any decision 21 to permit increased air pollution is made only after careful evaluation of all the 22 consequences of such a decision and after public participation in the decision 23 making process. 42 U.S.C. § 7470. These provisions and the regulatory provisions 24 that implement them are referred to as the "PSD program." 2 5 16. Section 165(a) of the Act, 42 U.S.C. § 7475(a), among other things, 26 provides that no construction, including modification, and operation of a "major 27 emitting facility" may take place in an area designated as attainment or 28 unclassifiable unless a permit has been issued that comports with the requirements Case 4:17-cv-00612-RCC Document 1 Filed 12/20/17 Page 5 of 16 1 of Section 165, including the best available control technology("BACT") for each 2 pollutant subject to regulation under the Act and emitted from the facility. 3 17. The Administrator of EPA, pursuant to authority under Section 109 of 4 the Act, 42 U.S.C. § 7409, has promulgated a NAAQS for nitrogen oxides ("NOx"), 5 with nitrogen dioxide ("NO2") as the indicator. 40 C.F.R. § 50.11. Section 169(1) 6 of the Act, 42 U.S.C. § 7479(1), designates nitric acid plants which emit or have the r1 potential to emit one hundred tons per year or more of any pollutant to be "major 8 emitting facilities" subject to the requirements ofPSD permitting. 9 18. Pursuant to Section 110 of the Act, 42 U.S.C. § 7410, EPA approved 10 "The State of Arizona Air Pollution Control Implementation Plan"(the "Arizona 11 SIP"), which was first officially submitted to EPA on January 28, 1972, 40 C.F.R. § 12 52.120(a)-(b). Since that time, the Administrator has approved numerous revisions 13 of the Arizona SIP, as specified at 40 C.F.R. § 52.120(c). 14 19. The Arizona SIP, Arizona Administrative Code Section R18-2-302, 15 prohibits the modification of any source of air pollutants subject to regulation 16 without a permit and requires "major sources" to obtain a "Class I" permit and 17 "minor sources" to obtain a "Class II" permit. 18 20. Under the Arizona Administrative Code Section R18-2-101(64) a 19 "major source" includes "[a] major stationary source, as defined in Section 302 of 20 the Act[42 U.S.C. 7602(j)], that directly emits or has the potential to emit, 100 tpy 21 [tons per year] or more of any air pollutant including any major source of fugitive 22 emissions of any such pollutant." Fugitive emissions are expressly included in the 23 calculation for nitric acid plants.
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