Case 8:20-cv-01710-VMC-AAS Document 1 Filed 07/24/20 Page 1 of 29 PageID 1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`Civil Action No.
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`UNITED STATES OF AMERICA,
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`Plaintiff,
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`v.
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`CF INDUSTRIES, INC.,
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`Defendant.
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`COMPLAINT
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`Plaintiff, the United States of America (“United States”), by the authority of the Attorney
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`General of the United States, acting at the request of the Administrator of the United States
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`Environmental Protection Agency (“EPA”), by and through the undersigned attorneys, alleges as
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`follows:
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`NATURE OF THE ACTION
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`1.
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`This is a civil action brought against CF Industries, Inc. (“CF Industries” or
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`“Defendant”) pursuant to Sections 113(b) of the Clean Air Act (“CAA”), 42 U.S.C. § 7413(b).
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`This Complaint seeks the assessment of civil penalties for violations of the Prevention of
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`Significant Deterioration (“PSD”) provisions of the CAA, 42 U.S.C. §§ 7470-92; Title V of the
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`CAA, 42 U.S.C. § 7661 et seq.; and the State Implementation Plan (“SIP”) for the State of
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`Florida (“Florida”) promulgated pursuant to Section 110 of the CAA, 42 U.S.C. § 7410. See Fla.
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`Admin. Code 62-212.400.
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`2.
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`This action is based upon violations that occurred at two sulfuric acid plants,
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`specifically the “C” and “D” sulfuric acid plants (hereinafter collectively “C and D SAPs”)
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`which are part of a phosphate fertilizer manufacturing facility located at 10608 Paul Buchman
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`1
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`Hwy, Plant City, Florida (hereinafter “Plant City Facility”) that was owned and operated by
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`Defendant at the time of the violations. The C and D SAPs emit sulfur dioxide (“SO2”), which is
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`a regulated pollutant under the CAA, into the atmosphere.
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`JURISDICTION, AUTHORITY AND VENUE
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`3.
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`This Court has jurisdiction over the subject matter of this action and the
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`Defendant pursuant to Sections 113(b) of the CAA, 42 U.S.C. § 7413(b), and pursuant to
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`28 U.S.C. §§ 1331, 1345, and 1355.
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`4.
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`Authority to bring this action on behalf of the United States is vested in the U.S.
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`Attorney General pursuant to Section 305(a) of the CAA, 42 U.S.C. § 7605(a), and 28 U.S.C. §§
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`516 and 519.
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`5.
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`Venue is proper in this District pursuant to Section 113(b) of the CAA, 42 U.S.C.
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`§ 7413(b), and 28 U.S.C. §§ 1391 and 1395(a), because the violations that constitute the basis of
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`this Complaint occurred in this District and the C and D SAPs are located in this District.
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`NOTICES
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`6.
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`Pursuant to Sections 113(a)(1) and 113(b) of the CAA, 42 U.S.C. § 7413(a), (b),
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`EPA has given notice of the violations and of this action to CF Industries and Florida more than
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`thirty days prior to the filing of this Complaint.
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`DEFENDANT
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`7.
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`Defendant CF Industries is incorporated under the laws of the State of Illinois
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`headquartered in Illinois, and was doing business in the State of Florida at the Plant City Facility
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`at the time of the violations. CF Industries sold the Plant City Facility on March 17, 2014
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`(hereafter, the “Facility Sale Date”) and has not operated the plant since that time.
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`8.
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`CF Industries is a “person” within the meaning of Section 302(e) of the CAA, 42
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`U.S.C. § 7602(e).
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`STATUTORY AND REGULATORY BACKGROUND
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`9.
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`The Clean Air Act is designed to protect and enhance the quality of the nation’s
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`air so as to promote the public health and welfare and the productive capacity of its population.
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`42 U.S.C. § 7401(b)(1).
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`A.
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`National Ambient Air Quality Standards
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`10.
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`Section 108(a) of the CAA, 42 U.S.C. § 7408(a), requires the Administrator of
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`EPA to promulgate a list of each air pollutant, emissions of which may reasonably be anticipated
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`to endanger public health or welfare and the presence of which results from numerous or diverse
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`mobile or stationary sources. Pursuant to Section 108(a), EPA has identified, inter alia, sulfur
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`oxides (including SO2) as such a pollutant. See 40 C.F.R. §§ 50.4 and 50.5 (effective May 22,
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`1996 through Aug. 22, 2010); see also 40 C.F.R. § 50.17 (effective Aug. 23, 2010).1
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`11.
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`Section 109(a) of the CAA, 42 U.S.C. § 7409(a), requires the Administrator of
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`EPA to promulgate regulations establishing primary and secondary national ambient air quality
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`standards (“NAAQS”) for those air pollutants (“criteria pollutants”) for which air quality criteria
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`have been issued pursuant to Section 108 of the CAA, 42 U.S.C. § 7408. The primary NAAQS
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`are to be adequate to protect the public health with an adequate margin of safety, and the
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`secondary NAAQS are to be adequate to protect the public welfare from any known or
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`anticipated adverse effects associated with the presence of the air pollutant in the ambient air.
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`Pursuant to Section 109(a) of the CAA, EPA has promulgated primary and secondary NAAQS
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`for sulfur oxides, including SO2. 40 C.F.R. §§ 50.4 and 50.5 (effective May 22, 1996 through
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`Aug. 22, 2010); 40 C.F.R. § 50.17 (effective Aug. 23, 2010).
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`1 The citations in this Complaint are to the statutes and regulations in place at the time that the alleged violations
`occurred. The provisions of 40 C.F.R. § 50 were amended, effective August 23, 2010, to include, inter alia, separate
`national primary ambient air quality standards for sulfur oxides (SO2). See 40 C.F.R. § 50.17 (Aug. 23, 2010).
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`12.
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`Pursuant to Section 107(d)(1)(A) of the Act, 42 U.S.C. § 7407(d)(1)(A), each
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`state is required to designate those areas, or districts, within its boundaries where the air quality
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`attains the NAAQS, fails to attain the NAAQS, or cannot be classified due to insufficient data
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`(unclassifiable). Designations that have been approved by EPA are set forth at 40 C.F.R. Part 81.
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`An area that meets the NAAQS for a particular pollutant is an “attainment” area. An area that
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`does not meet the NAAQS is a “nonattainment” area. An area that cannot be classified due to
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`insufficient data is “unclassifiable.”
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`B.
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`State Implementation Plan
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`13.
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`To achieve the objectives of the NAAQS and the CAA, Section 110(a) of the
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`CAA, 42 U.S.C. § 7410(a), requires each State to adopt and submit to EPA for approval a plan
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`that provides for the attainment and maintenance of the NAAQS in each air quality control
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`region within each state. This plan is known as a State Implementation Plan (“SIP”).
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`14.
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`In 1972, pursuant to Section 110 of the CAA, the State of Florida submitted to
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`EPA for approval the “State of Florida Air Implementation Plan” (hereafter “Florida SIP”),
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`detailing requirements for the attainment and maintenance of the NAAQS. On May 31, 1972,
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`EPA approved the Florida SIP. See 37 Fed. Reg. 10858. Since its initial EPA approval, the
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`Florida SIP has been amended, re-codified, and approved several times. See, e.g., 46 Fed. Reg.
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`17020 (Mar. 17, 1981); 48 Fed. Reg. 52716 (Nov. 22, 1983); 59 Fed. Reg. 52916 (Oct. 20,
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`1994); 60 Fed. Reg. 2688 (Jan. 11, 1995); 64 Fed. Reg. 32346 (June 16, 1999); Fla. Dept. of
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`Env. Protection, Air Regulation Timelines (CFR and FAC): Air Regulations Timelines 9-23-
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`2019.xlsx, available at https://floridadep.gov/air/air-business-planning/documents/air-regulation-
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`timelines-cfr-and-fac (last visited Sept. 24, 2019). These constitute Florida’s “applicable
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`implementation plan,” within the meaning of Section 113(b) and 302(q) of the CAA, 42 U.S.C.
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`§§ 7413(b) and 7602(q), and are considered the “Florida SIP.” See Fla. Admin. Code 62-
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`212.400.
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`C.
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`Prevention of Significant Deterioration (“PSD”) Requirements
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`1.
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`15.
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`General Federal PSD Provisions
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`Part C of Title I of the CAA, 42 U.S.C. §§ 7470-7492, sets forth requirements for
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`the prevention of significant deterioration of air quality in those areas designated as either
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`attainment or unclassifiable for purposes of meeting the NAAQS. These requirements are
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`designed to protect public health and welfare, to assure that economic growth will occur in a
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`manner consistent with the preservation of existing clean air resources, and to assure that any
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`decision to permit increased air pollution is made only after careful evaluation of all the
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`consequences of such a decision and after public participation in the decision making process. 42
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`U.S.C. § 7470. These provisions are referred to herein as the “PSD program.”
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`16.
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`The core of the PSD program is that “[n]o major emitting facility . . . may be
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`constructed” or modified2 unless various requirements are met. 42 U.S.C. § 7475(a). These
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`requirements include obtaining a permit with emission limits, demonstrating that emissions will
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`not contribute to a NAAQS violation, and applying “best available control technology”
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`(“BACT”)3 to control emissions. Id.
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`2 Section 169(2)(C) of the Act, 42 U.S.C. § 7479(2)(C), defines “construction” to include “modification” (as defined
`in Section 111(a) of the Act). “Modification” is defined in Section 111(a) of the Act, 42 U.S.C. § 7411(a), to be “any
`physical change in, or change in the method of operation of, a stationary source which increases the amount of any
`air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted.”
`3 “Best available control technology means an emissions limitation . . . based on the maximum degree of reduction
`for [the regulated] pollutant . . . which would be emitted from [the] major modification which the Administrator, . . .
`taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such
`source or modification through application of production processes or available methods, systems, and techniques . .
`. for control of such pollutant.” 40 C.F.R. § 52.21(b)(12). It is a case-by-case determination made for each individual
`permit.
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`17.
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`Section 169(1) of the CAA, 42 U.S.C. § 7479(1), designates sulfuric acid plants
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`which emit or have the potential to emit one hundred tons per year (“tpy”) or more of any
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`pollutant to be a “major emitting facility.”
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`18.
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`EPA promulgated regulations designed to implement the PSD program. These
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`regulations are found at 40 C.F.R. § 52.21 and are referred to as the “PSD regulations.”
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`19.
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`Sections 110(a) and 161 of the CAA, 42 U.S.C. §§ 7410(a) and 7471, require
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`each state to adopt in its SIP an EPA-approved PSD program that contains emission limitations
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`and such other measures as may be necessary to prevent significant deterioration of air quality in
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`areas designated as attainment or unclassifiable.
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`20.
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`A state may comply with Sections 110(a) and 161 by being delegated by EPA
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`with the authority to enforce the federal PSD regulations set forth at 40 C.F.R. § 52.21, or by
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`having its own PSD regulations, approved by EPA as part of the state’s SIP, on the basis that the
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`state’s PSD provisions set forth in the SIP are at least as stringent as those set forth in the federal
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`PSD regulations.
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`21.
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`After EPA approves a state’s PSD program into the state SIP, the program
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`requirements, like all SIP requirements, become federally enforceable pursuant to Section
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`113(a)(1) of the CAA, 42 U.S.C. § 7413(a)(1).
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`2.
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`22.
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`Florida’s PSD Program
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`Pursuant to Section 110(a) of the CAA, 42 U.S.C. § 7410(a), the State of Florida
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`has adopted and submitted to EPA for approval various rules for the attainment and maintenance
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`of the NAAQS. Florida’s proposed PSD rule was given final approval by EPA into the Florida
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`SIP on December 22, 1983. The approval transferred to the State of Florida Department of
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`Environmental Protection (“FDEP”) the legal authority to process and issue PSD permits to
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`sources in Florida that are required to obtain PSD permits.
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`23.
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`The Florida SIP has PSD provisions that are applicable to this action and closely
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`mirror the federal PSD regulations codified at 40 C.F.R. § 52.21. See Fla. Admin. Code 62-
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`212.400.
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`3.
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`24.
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`Applicable PSD Requirements
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`The Florida SIP, which includes the PSD program, was conditionally approved in
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`1980, and amended, recodified, and approved as part of the federally approved SIP numerous
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`times, including in 1981, 1983, 1994, 1995, 1999, 2006, 2007, 2008, 2011, and 2012. Some
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`portions of the Florida SIP such as Fla. Admin. Code 62-210.200 were amended multiple times
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`per year. The 2006 amendment saw a major overhaul to the applicable Florida SIP requirements.
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`The provisions applicable to the allegations in this Complaint did not substantively change
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`between the 2006 amendment and amendments thereafter.
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`i.
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`Florida SIP PSD Requirements Prior to February 1, 2006
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`25.
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`Under the Florida SIP applicable to the allegations in this Complaint through
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`February 1, 2006, the criteria for establishing whether a modification to an existing major facility
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`is subject to preconstruction review is set forth in Fla. Admin. Code 62-212.400(2) (effective
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`through Feb. 1, 2006). The specific criteria for modifications to major facilities are set forth in
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`Fla. Admin. Code 62-212.400(2)(d)4. (effective Nov. 1, 1981 through Feb. 1, 2006).
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`26.
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`Pursuant to Fla. Admin. Code. 62-212.400(2)(d)4.a. (effective Nov. 1, 1981
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`through Feb. 1, 2006),
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`[A] proposed modification to a major facility shall be subject to the
`preconstruction review requirements of this rule if:
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`(i)
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`The facility to be modified would be subject to preconstruction review
`requirements pursuant to Rule 62-212.400(2)(d)2., F.A.C., if it were itself
`a proposed new facility; and
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`The modification would result in a significant net emissions increase (as
`set forth in Rule 62-212.400(2)(e)2., F.A.C.) of any pollutant regulated
`under the Act; or the facility to be modified is located within 10
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`(ii)
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`kilometers of a Class I area and the modification would result in a net
`emissions increase (as set forth in Rule 62-212.400(2)(e)1., F.A.C.) of any
`pollutant regulated under the Act, which increase would have an impact on
`any Class I area equal to or greater than 1.0 microgram per cubic meter
`(24-hour average).
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`Fla. Admin. Code. 62-212.400(2)(d)2. (effective Nov. 1, 1981 through Feb. 1,
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`27.
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`2006) sets forth the criteria for New Major Facilities. Pursuant to this subsection,
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`a proposed new major facility shall be subject to the preconstruction review
`requirements of this rule if:
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`a.
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`For any pollutant regulated under the Act, except for lead, the sum of the
`quantifiable fugitive emissions and the potential emissions of all emissions
`units at the facility which have the same “Major Group” Standard
`Industrial Classification (SIC) Code (as described in the Standard
`Industrial Classification Manual, 1972, as amended by the 1977
`Supplement . . . ) would be equal to or greater than 250 tons per year; or
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`For any pollutant regulated under the Act, except for lead, the sum of the
`quantifiable fugitive emissions and the potential emissions of all emissions
`units at the facility which have the same “Major Group” Standard
`Industrial Classification (SIC) Code would be equal to or greater than 100
`tons per year; and the facility would belong to any of the facility
`categories listed in Table 212.400-1, Major Facility Categories . . . .
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`b.
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`28.
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`Sulfuric acid plants are listed in the Standard Industrial Classification (“SIC”)
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`code under Major Group 28, Industrial Group 281, Industrial Number 2819. Executive Office of
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`the President Office of Management and Budget, STANDARD INDUSTRIAL CLASSIFICATION
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`MANUAL, 132-34 (1972 & 1977 Supp.).
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`29.
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`Sulfuric acid plants are listed in the facility categories in Table 212.400-1 of the
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`Florida Admin. Code (effective Nov. 1, 1981 through Feb. 1, 2006).
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`30.
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`The threshold for a “significant net emissions increase” of SO2, as set forth in Fla.
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`Admin. Code 62-212.400(2)(e)2. and Table 212.400-2 (effective Nov. 1, 1981 through Feb. 1,
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`2006), is 40 tpy.
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`31.
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`Thus, modifications of sulfuric acid plants would be subject to preconstruction
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`review under the Florida PSD requirements effective through Feb. 1, 2006 if (1) the facility
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`would have been subject to PSD requirements if it were a new facility (having SO2 emissions of
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`greater than 100 tpy), and (2) the modifications would result in a significant net emissions
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`increase of at least 40 tpy. See Fla. Admin. Code. 62-212.400(2)(d)4.a. (effective Nov. 1, 1981
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`through Feb. 1, 2006); 62-212.400(2)(d)2. (effective Nov. 1, 1981 through Feb. 1, 2006).
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`32.
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`The preconstruction review requirements are set forth in Fla. Admin. Code 62-
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`212.400(5), and include, inter alia, the following:
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`a.
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`The modification “shall apply Best Available Control Technology
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`(BACT) for each pollutant subject to preconstruction review requirements as set forth in Rule
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`62-212.400(2)(f), F.A.C.” Fla. Admin. Code 62-212.400(5)(c) (effective Nov. 1, 1981 through
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`Feb. 1, 2006) (see also 40 C.F.R. § 52.21(b)(12) and 42 U.S.C. § 7479(3)).
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`b.
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`The owner or operator must demonstrate that the construction or
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`modification, taken together with other increases or decreases of air emissions, will not violate
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`applicable air quality standards. Fla. Admin. Code 62-212.400(5)(d) (effective Nov. 1, 1981
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`through Feb. 1, 2006); see also 40 C.F.R. § 52.21(k).
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`c.
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`The application for a PSD permit must be accompanied by an analysis of
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`ambient air quality in the area. Fla. Admin. Code 62-212.400(5)(f) (effective Nov. 1, 1981
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`through Feb. 1, 2006); 40 C.F.R. § 52.21(m).
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`d.
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`Pursuant to Fla. Admin. Code 62-212.400(5)(h),
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`[a]t a minimum, the owner or operator of the facility or modification shall
`provide[, inter alia,] the following information to the Department:
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`1. A description of the nature, location, design capacity and typical
`operating schedule of the facility or modification, including
`specifications and drawings showing its design and plant layout;
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`2. A detailed schedule for construction of the facility or modification;
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`3. A detailed description of the system of continuous emissions reduction
`proposed by the facility or modification as BACT, emissions estimates
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`and any other information as necessary to determine that BACT would
`be applied to the facility or modification;
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`4. Information relating to the air quality impact of the facility or
`modification, including meteorological and topographical data
`necessary to estimate such impact; and
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`5. Information relating to the air quality impacts of, and the nature and
`extent of, all general commercial, residential, industrial and other
`growth which has occurred since August 7, 1977, in the area the
`facility or modification would affect.
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`ii.
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`Florida SIP PSD Requirements Effective February 2, 2006
`Through the Facility Sale Date
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`33.
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`Under the Florida SIP applicable to the allegations in this Complaint from
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`February 2, 2006 through the Facility Sale Date, the criteria for establishing whether a
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`modification to an existing facility is subject to preconstruction review is set forth in Fla. Admin.
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`Code 62-212.400 (effective February 2, 2006 through the Facility Sale Date).
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`34.
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`Specifically, “[n]o person shall . . . undertake any major modification except in
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`compliance with the provisions of Rule 62-212.400, F.A.C.” Fla. Admin. Code 62-212.400(1)(a)
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`(effective Feb. 2, 2006 through March 27, 2012); see also Fla. Admin. Code 62-212.400(1)(a)
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`(effective March 28, 2012 through the Facility Sale Date); 40 C.F.R. § 52.21(a)(1).
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`35.
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`Fla. Admin. Code 62-212.400(2)(a)1. (effective Feb. 2, 2006) sets forth the
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`criteria for determining “whether a major modification will occur for [a] PSD pollutant” at an
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`existing emissions unit as follows:
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`Baseline Actual-to-Projected Actual Applicability Test for Modifications at
`Existing Emissions Units. A significant emissions increase of a PSD pollutant will
`occur if the difference, or the sum of the differences if more than one emissions
`unit is involved, between the projected actual emissions and the baseline actual
`emissions equals or exceeds the significant emissions rate for that pollutant. . . .
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`36.
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`The “baseline actual emissions” used to determine an emissions increase differs
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`based on whether the emissions unit is new or existing. For existing emissions units, the
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`“baseline actual emissions” is “the average rate, in tons per year, at which the emissions unit
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`actually emitted the pollutant during any consecutive 24-month period selected by the owner or
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`operator within the 10-year period immediately preceding the date a complete permit application
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`is received by [FDEP]. . . .” Fla. Admin. Code 62-210.200 (hereinafter “Fla. Air Definitions”);4
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`see also 40 C.F.R. § 52.21(b)(48)(ii). For any new emissions unit, baseline actual emissions,
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`after the initial construction and operation of the unit, “shall equal the unit’s potential to emit.”
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`Fla. Air Definitions; see also 40 C.F.R. § 52.21(b)(48)(iii).
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`37.
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`“Projected actual emissions” is the “maximum annual rate, in tons per year, at
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`which an existing emissions unit is projected to emit a PSD pollutant in any one of the 5 years
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`following the date the unit resumes regular operation after the project, or in any of the 10 years
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`following that date, if the project involves increasing the emissions unit’s design capacity or its
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`potential to emit that PSD pollutant and full utilization of the unit would result in a significant
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`emissions increase or a significant net emissions increase at the major stationary source.” Fla.
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`Air Definitions; see also 40 C.F.R. § 52.21(b)(41)(i).
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`38.
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`An “existing emissions unit” is any emissions unit which was “in existence, in
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`operation, or under construction, or had received a permit to begin construction prior to January
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`18, 1972.” Fla. Air Definitions; see also 40 C.F.R. § 52.21(b)(7)(ii).
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`39.
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`A “new emissions unit,” for purposes of Fla. Admin. Code 62-212.400, is defined
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`as “an emission unit which is not in existence, for which an application for a permit to construct
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`has not been submitted before the effective date of an applicable section or provision, or which
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`has been reclassified as a new emissions unit pursuant to any provision” of this Chapter. Fla. Air
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`Definitions; 40 C.F.R. § 52.21(b)(7)(i).
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`4 Fla. Admin. Code 62-210.200, which contains the definitions applicable to, inter alia, the Florida SIP and Title V
`provisions, was amended several times during the period relevant to the Complaint, including July 6, 2005; Feb. 1,
`2006; Sept. 6, 2006; May 9, 2007; March 16, 2008; Oct. 12, 2008; March 11, 2010; Dec. 4, 2011; March 28, 2012;
`and October 23, 2013. This complaint uses the term “Fla. Air Definitions” to refer to any, all, or each of these
`iterations as applicable.
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`40.
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`The “significant net emissions increase” or “significant emissions rate” for the
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`purposes of determining emissions increase or net emissions increase is 40 tpy for SO2. See Fla.
`
`Air Definitions; see also 40 C.F.R. § 52.21(b)(23)(i).
`
`41.
`
`Thus, modifications of sulfuric acid plants would be subject to preconstruction
`
`review under the Florida PSD requirements effective Feb. 2, 2006 through the Facility Sale Date
`
`if they resulted in an increase of SO2 emissions of 40 tpy or more. See Fla. Admin. Code 62-
`
`212.400 (versions effective Feb. 2, 2006 through the Facility Sale Date); Fla. Air Definitions; see
`
`also 40 C.F.R. § 52.21.
`
`42.
`
`Florida’s PSD requirements effective Feb. 2, 2006 through the Facility Sale Date
`
`are set forth in Fla. Admin. Code 62-212.400(4) through (13) and are similar to those set forth in
`
`the previous version of the administrative code. See also 40 C.F.R. § 52.21. They include, inter
`
`alia, the following:
`
`a.
`
`Pursuant to Fla. Admin. Code 62-212.400(4),
`
`
`
`The owner or operator of a proposed source or modification shall submit
`all information necessary to perform any analysis or make any
`determination required under this section. Such information shall include:
`
`(a) A description of the nature, location, design capacity, and typical
`operating schedule of the source or modification, including
`specifications and drawings showing its design and plant layout;
`
`(b) A detailed schedule for construction of the source or modification;
`
`(c) A detailed description as to what system of continuous emission
`reduction is planned for the source or modification, emission
`estimates, and any other information necessary to determine best
`available control technology (BACT) including a proposed BACT;
`
`(d) The air quality impact of the source or modification, including
`meteorological and topographical data necessary to estimate such
`impact and an analysis of “good engineering practice” stack height;
`and
`
`(e) The air quality impacts, and the nature and extent of any or all general
`commercial, residential, industrial, and other growth which has
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`Case 8:20-cv-01710-VMC-AAS Document 1 Filed 07/24/20 Page 13 of 29 PageID 13
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`occurred since August 7, 1977, in the area the source or modification
`would affect.
`
`
`(effective Feb. 2, 2006); see also 40 C.F.R. § 52.21(n).
`
`b.
`
`The owner or operator must demonstrate that the construction or
`
`modification, taken together with other increases or decreases of air emissions, will not violate
`
`applicable air quality standards. Fla. Admin. Code 62-212.400(5) (effective Feb. 2, 2006); see
`
`also 40 C.F.R. § 52.21(k).
`
`c.
`
`The application for a PSD permit must be accompanied by an analysis of
`
`ambient air quality in the area. Fla. Admin. Code 62-212.400(7) (effective Feb. 2, 2006); see
`
`also 40 C.F.R. § 52.21(m).
`
`43.
`
`Additionally, if a new major source of pollution or modification requires an air
`
`construction permit, it must comply with the requirements set forth in Fla. Admin. Code 62-
`
`210.300 (Permits Required). These include but are not limited to providing to FDEP sufficient
`
`information so that the permit: “1. specif[ies] the manner, nature, volume, and frequency of the
`
`emissions permitted, and the applicable emission limiting standards or performance standards, if
`
`any;(2. require[s] proper operation and maintenance of any pollution control equipment by
`
`qualified personnel . . .; [and] 3. contain[s] an effective date stated in the permit which shall not
`
`be earlier than the date the final action is take on the application . . . .” Fla. Admin. Code 62-
`
`210.300(2)(a) (effective Feb. 2, 2006 through the Facility Sale Date); see also 40 C.F.R. § 52.21.
`
`D.
`
`Title V
`
`44.
`
`Title V of the CAA, 42 U.S.C. §§ 7661-7661f, establishes an operating permit
`
`program for certain sources, including “major sources.” The purpose of Title V is to ensure that
`
`all “applicable requirements” that a source is subject to under the CAA, including PSD and SIP
`
`requirements, are collected in one permit.
`
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`Case 8:20-cv-01710-VMC-AAS Document 1 Filed 07/24/20 Page 14 of 29 PageID 14
`
`45.
`
`Pursuant to Section 502(b) of the CAA, 42 U.S.C. § 7661a(b), EPA promulgated
`
`regulations implementing the requirements of Title V and establishing the minimum elements of
`
`a Title V permit program to be administered by any state or local air pollution control agency.
`
`57 Fed. Reg. 32250 (July 21, 1992). These regulations are codified at 40 C.F.R. Part 70.
`
`46.
`
`The State of Florida has an EPA-approved Title V program and is authorized to
`
`issue and enforce Title V permits. See 40 C.F.R. Part 70 Appendix A. Pursuant to Appendix A of
`
`Part 70, Florida’s Title V program was given interim approval by EPA on September 25, 1995
`
`(60 Fed. Reg. 49343), and became effective on October 25, 1995. EPA gave final approval to the
`
`program on October 1, 2001 (66 Fed. Reg. 49837), and it became effective on October 31, 2001.
`
`The state’s Title V regulations are codified at Fla. Admin. Code 62-213 (Operation Permits For
`
`Major Sources of Air Pollution). In all respects relevant to this Complaint, Florida’s Title V
`
`regulations that are applicable to this action closely mirror the federal Title V regulations
`
`codified at 40 C.F.R. Part 70. See generally Fla. Admin. Code 62-213.
`
`47.
`
`“Major source of air pollution” or “Title V Source” is defined as, inter alia, “an
`
`emissions unit or group of emissions units, all belonging to the same two-digit Major Group as
`
`described in the Standard Industrial Classification Manual, 1987, that directly emits or has the
`
`potential to emit, 100 tons per year or more of any regulated air pollutant.” Fla. Air Definitions;
`
`42 U.S.C. §§ 7602(j) and 7661(2); 40 C.F.R. § 70.2.
`
`48.
`
`Sulfuric acid plants are listed in Major Group 28 in the Standard Industrial
`
`Classification Manual, 1987, at pages 134-35. SO2 is a regulated air pollutant. See Fla. Air
`
`Definitions; 40 C.F.R. §§ 50.4 and 50.5 (effective May 22, 1996 through Aug. 22, 2010); see
`
`also 40 C.F.R. § 50.17 (effective Aug. 23, 2010); 40 C.F.R. § 52.21(b)(1)(i)(a).
`
`49.
`
`Section 502(a) of the CAA, 42 U.S.C. § 7661a(a), and the federal implementing
`
`regulations at 40 C.F.R. § 70.1(b), and Fla. Admin. Code 62-213.400 make it unlawful for any
`
`14
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`Case 8:20-cv-01710-VMC-AAS Document 1 Filed 07/24/20 Page 15 of 29 PageID 15
`
`person to violate any requirement of a permit issued under Title V or to operate a major source
`
`except in compliance with a permit issued by a permitting authority under Title V.
`
`50.
`
`Section 504(a) of the CAA, 42 U.S.C. § 7661c(a), the implementing regulations at
`
`40 C.F.R. § 70.6(a), and Fla. Admin. Code 62-213.420 require that each Title V permit include,
`
`among other things, enforceable emission limitations and such other conditions as are necessary
`
`to assure compliance with “applicable requirements” of the CAA and the requirements of the
`
`relevant SIP. “Applicable requirement” is defined to include any relevant PSD requirements. 40
`
`C.F.R. § 70.2; Fla. Air Definitions.
`
`51.
`
`Section 503(d) of the CAA, 42 U.S.C. § 7661b(d), the implementing regulations
`
`at 40 C.F.R. § 70.5(a), and Fla. Admin. Code 62-213.420 require any owner or operator of a
`
`source subject to Title V permitting requirements to submit a timely and complete permit
`
`application which includes sufficient information for the permitting authority to evaluate the
`
`subject source and applicable requirements. 40 C.F.R. § 70.5(a)(2).
`
`52.
`
`Under 40 C.F.R. § 70.5(b) and Fla. Admin. Code 62-213.420, any applicant who
`
`fails to submit any relevant facts or who has submitted incorrect information in a permit
`
`application must, upon becoming aware of such failure or incorrect submittal, promptly submit
`
`such supplementary facts or corrected information.
`
`E.
`
`Enforcement Provisions
`
`53.
`
`Sections 113(a)(1) and (3) of the CAA, 42 U.S.C. §§ 7413(a)(1) and (3), provide
`
`that the Administrator of EPA may bring a civil action in accordance with Section 113(b) of the
`
`CAA whenever, on the basis of any information available to the Administrator, the
`
`Administrator finds that any person has violated or is in violation of any other requirement or
`
`prohibition of, inter alia: (1) the PSD requirements of Section 165(a) of the CAA, 42 U.S.C. §
`
`15
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`Case 8:20-cv-01710-VMC-AAS Document 1 Filed 07/24/20 Page 16 of 29 PageID 16
`
`7475(a), or any rule promulgated thereunder; (2) Title V of the CAA, 42 U.S.C. §§ 7661-7661f,
`
`or any rule or permit issued thereunder; or (3) a SIP or any permit issued thereunder.
`
`54.
`
`Any owner or operator of a new major stationary source or modification subject
`
`to Fla. Admin.