Government Sues Fertilizer Plant for Clean Air Act Violations

The Department of Justice’s Enforcement Section of the Environment and Natural Resources Division (ENRD) filed a civil complaint on Friday in the Middle District of Florida at the request of the Environmental Protection Agency (EPA) against CF Industries, Inc. for alleged decades-long violations of the Clean Air Act (CAA). The plaintiffs asked the court to assess civil penalties for abuses of the Prevention of Significant Deterioration (PSD) sections of the CAA, Title V of the CAA, and Florida’s CAA-sanctioned State Implementation Plan (SIP).

CF Industries owned and operated two sulfuric acid plants in Plant City, Florida from 1991 until 2014. The plants were engaged in phosphate fertilizer manufacture that emitted sulfur dioxide, a regulated “criteria pollutant” under the CAA. Because the plants each discharged more than 100 tons per year (tpy) of the gas, they fell within the CAA’s “major stationary source” and “major emitting facilities” definitions, subjecting them to a number of federal and state regulations.

The ENRD accused CF Industries of shirking its statutory duties. Its first claim for relief involves an alleged PSD violation for permit-less modifications made to the plants in 2004 and 2005. Once it installed new blower fans, CF Industries requested a permit modification to up the sulfuric acid production levels at its plants to 2,750 tons per day (tpd) from 2,600 tpd.

According to the ENRD, the potential sulfur dioxide emission increase was 399 tons per year (tpy), dwarfing the 40 tpy significance level that triggers PSD and Best Available Control Technology (BACT) reviews for such “major modifications.” Because the defendant failed to conduct these analyses prior to installation, it violated and was in continuous violation of federal and corresponding state PSD requirements up until CF Industries sold its Plant City facility on March 17, 2014.

The second claim for relief cites another PSD violation stemming from the defendant’s November 2007 permit modification request to further increase sulfuric acid production from 2,750 to 2,962 tpd. At the time, CF Industries stated there would be no corresponding increase in sulfur dioxide emissions, enabling it to avoid “major modification” status and PSD review.

The ENRD alleged that CF Industries used a 2004 permit limit of 1,757 tpy of sulfur dioxide as a baseline in determining that there would be no increase in emissions, rather than the two plants’ actual averages of 1,639 and 1,494 tpy. However, under sections of the Florida Administrative Code and federal law, the use of this baseline in such a calculation “is permissible only for new emissions units.”

When calculated using the plants’ recorded yearly averages, the request triggers “major modification” status and a PSD review under the Florida SIP. Because the defendant failed to meet the PSD requirements by “not applying for, obtaining, or operating pursuant to a PSD permit for these proposed increases in production,” it violated the state’s SIP and federally imposed CAA requirements.

Its third and final allegation concerned CF industries’ supposed Title V violations. Title V sets forth an operating permit program for certain sources. It ensures that a source’s applicable requirements under the CAA, inclusive of PSD and SIP requirements, are collected in a single permit.

The ENRD contended that CF Industries’ failure to submit “complete and accurate” Title V applications for the modified sulfuric acid production at its two plants caused it to transgress Title V strictures. According to the complaint, the applications should have “identified all applicable requirements, accurately certified compliance with such requirements, and contained a compliance plan for applicable requirements for which the source was not in compliance,” but did not. Absent valid operating permits, the defendant was purportedly out of compliance with CAA and Florida Title V requirements.

For each of the three alleged violations, the defendant could face civil penalties between $32,500 and $37,500 per day. The ENRD also asked for reimbursement of its costs, and whatever other relief the court deemed appropriate.