LOIS 1. SCIllFFER 

Assistant Attorney General 

Environment & Natural Resources Division 

United States Department ofJustice 

ROBERT R. HOMIAK 

DAVID ROCHLIN 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

999 18th Street, Suite 945 North 

Denver, Colorado 80202 

Telephone: (303) 312-7353 

PAUL M. WARNER, United States Attorney (#3389) 

ERIC A. OVERBY, Assistant United States Attorney (#7761) 

185 South State Street, #400 

Salt Lake City, Utah 84111 

Telephone: (801) 524-5682 

Attorneys for the United States ofAmerica 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF UTAH 

UNITED STATES OF AMERICA, ) Civil Action No. 

) 1:97-CV-0144-ST 

Plaintiff, ) 

) 

v. ) 

) 

PHITLIPS PETROLEUM COMPANY, ) Judge Ted Stewart 

) 

Defendant. ) 

UNITED STATES' MOTION FOR SUMMARY JUDGMENT
 

Pursuant to Rule 56 ofthe Utah Rules ofCivil Procedure, Plaintiff, the United States 

respectfully moves the Court for Summary Judgment in the above-captioned matter. This motion 

is supported by the memorandum in support filed concurrently herewith. 
DATED: December 1999 Respectfully submitted, 

LOIS J. SCHIFFER 

Assistant Attorney Gene.ral 

Environment and Natural Resources Division 

U.S. Department ofJustice 

BY.1<JLlb t t4~1Yw'I~ ROBERT R. HOMIAK 

Trial Attomey 

DAVII> ROCHLlN 

Special DOl Attorney 

Environmental Enforcement Section 

Environment and Natural Resources Division 

U.S. Department of1ustice
 

999 lStb Street, Suite 900-N
 

Denver, Colorado 80202
 

(303) 312-7353 

PAULM. WARNER 

United States Attorney 

District ofUtah 

ERIC OVERBY 

Assistant United States Attorney 

District ofUtah 

18S South State Street . . SUlte440 

Salt Lake City, Utah 84111 

(801) 325-3233 

-2­
LOIS J. SCHIFFER 

Assistant Attorney General 

Environment & Natural Resources Division 

United States Department of Justice . 

ROBERT R. HOMIAK 

DAVID ROCHLIN 

Environmental Enforcement Section 

Environment and Natural Resources Division 

United States Department of Justice 

999 18th Street, Suite 945 North 

Denver, Colorado 80202 

Telephone: (303) 312-7353 

PAUL M. WARNER, United States Attorney (#3389) 

ERIC A. OVERBY, Assistant United States Attorney (#7761) 

185 South State Street, #400 

Salt Lake City, Utah 84111 

Telephone: (801) 524-5682 

Attorneys for the United States ofAmerica 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF UTAH 

UNITED STATES OF AMERICA, ) Civil Action No. 

) 1:97-CV-0 144-ST 

Plaintiff, ) 

) 

v. ) 

) 

PHILLIPS PETROLEUM COMPANY, ) Judge Ted Stewart 

) 

Defendant. ) 

UNITED STATES' MEMORANDUM IN SUPPORT
 

OF ITS MOTION FOR SUMMARY JUDGMENT
 
TABLE OF CONTENTS
 

TABLE OF AUTHORITIES a
 

INTRODUCTION i
 

UNDISPUTED FACTS ii
 

A. FACTS RELATED TO THE ISSUE OF THE SRU EMISSION LIMlT
 

AVERAGING TIME ii
 

B. FACTS RELATED TO THE ISSUE OF THE SRU EFFICIENCY
 

REQUIREMENT xvii
 

C. FACTS RELATED TO THE ISSUE OF EPA'S RIGHT TO DETERMINE 

AVOIDABILITY OF BREAKDOWN FOR PURPOSES OF FEDERAL 

ENFORCEMENT xx 

ARG~NT , .. 1
 

STANDARD OF REVIEW 1
 

A. PHILLIPS IS SUBJECT TO A NEVER-TO-BE-EXCEEDED HOURLY LIMIT .. 3
 

1. INTRODUCTION 3
 

2. THE STATE CONSISTENTLY ESTABLISHED HOURLY LIMITS FOR
 

THESRU 4
 

3. UTAH'S REGULATIONS OF OTHER SOURCES IN THE SIP SHOWS IT
 

SET AN HOURLY LIMIT FOR PHILLIPS 9
 

4. THE STATE'S OWN WITNESSES AGREED THAT THE APPROVAL
 

ORDERS ESTABLISH HOURLY LIMITS 11
 

5. PHILLIPS ITSELF RECOGNIZED THAT THE APPROVAL ORDERS
 

ESTABLISHED HOURLY LIMlTS 13
 

6. WHAT THE STATE MAY HAVE "INTENDED" IS IRRELEVANT TO
 

THIS PHASE OF THE PROCEEDINGS 20
 

7. NO UNFAIRNESS TO PHILLIPS RESULTS FROM THE ENFORCEMENT
 

OF MT HOURLY LIMlT 22
 

A 
8. SOUND PUBLIC POLICY REQUIRES THAT EPA BE ABLE TO
 

ENFORCE THE SIP AS WRITTEN 23
 

B. PHILLIPS IS REQUIRED TO ACHIEVE 95% EFFICIENCY AT ITS SRU ON A
 

DAJI.,Y BASIS 24
 

1. THE JULy 1995 APPROVAL ORDER IS CLEAR ON ITS FACE 24
 

2. THE STATE'S WITNESSES AND A KEY PHILLIPS EMPLOYEE HAVE
 

TESTIFIED THAT 95% EFFICIENCY MUST BE MAINTAINED ON A
 

DAJI.,Y BASIS 26
 

C. UTAH'S JUDGMENTS REGARDING THE AVOIDABILITY OF BREAKDOWNS
 

ARE NOT BINDING ON EPA FOR THE PURPOSES OF FEDERAL
 

ENFORCEMENT 28
 

1. THE UTAH EXCESS EMISSIONS BREAKDOWN RULE DOES NOT
 

PREVENT EPA FROM EXERCISING INDEPENDENT JUDGMENT ABOUT
 

WHICH BREAKDOWNS ARE AVOIDABLE 28
 

2. NOTHING PREVENTS EPA FROM EXERCISING INDEPENDENT
 

JUDGMENT ABOUT WHICH CEM BREAKDOWNS ARE AVOIDABLE .. 31
 

CONCLUSION 33
 

B
 
TABLE OF AUTHORITIES
 

FEDERAL CASES
 

. American Cyanamid Co. v. US. EPA, 810 F.2d 493,496 (5th Cir. 1987) 29 

American Lung Ass'n orN. I. v. Kean, 670 F. Supp. 1285, 1291 (D.N.I. 1987) 29 

Anderson v. Liberty Lobby, Inc., 477 US. 242 (1986) 1 

Bragdon v. Abbott, 524 US. 624,625 (1998) 29 

Chevron, US.A. v. Natural Resources Defense Council, 467 US. 837, 844 (1984) 2 

Duquesne Light Co. v. U.S. EPA, 698 F.2d 456,471 (D.C. Cir. 1983) 23 

FDIC v. Canfield, 967 F. 2d 443 (10th Cir. 1992) 24 

NavistarInternational Transportation Co. v. EPA, 858 F. 2d 282, 284 (6th Cir. 1988) 2 

Train v. NRDC, 421 U.S. 60(1975) 10 

US. West, Inc. v. FCC, 182 F. 3d 1224 (10th Cir. 1999) 2 

Union Electric Co. v. EPA, 515 F.2d 206,211 (8th Cir. 1975), aff'd 427 US. 246 (1976) ..... 2 

United States v. Congoleum Corp., 635 F. Supp 174, 177 n.4 (E.D. Pa. 1986) 3 

United States v. Ford Motor Co., 814 F.2d 1099, (6th Cir.) cert. denied, 484 US. 822 (1987) 23 

United States. v. SCM Corp., 615 F. Supp. 411,419 (D. Md. 1985) 30 

United States v. Vista Paint Corp., 42 ERC 2020, 1996 WL 477053, 15 (C.D. Calif. 1996), aff'd 

129 F. 3d 129 (9th Cir. 1997), cert. denied,119 St. Ct. 53 (1998) 30,31 

Unitek Environmental Services, Inc. and Unitek Solvent Services, Inc. v. Hawaiian Cement, 

27 ELR 20483 (D. Haw. 1997) 33 

a 
FEDERAL STATUTES
 

42 US.C. §§7401 II 

42 U.S.C. §7409 ' ii 

42 US.C. §7410(a)(2) iii 

42 US.C. §7410(k) " iii, 2 

42 US.C. §7410(k)(5) 29 

42 US.c. §7410(p) 29 

42 US.c. §7413(e) 21 

42 U.S.C. §7413(e)(1) 30 

42 U.S.C. §7414 , ix 

42 U.S.C. §7502(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. XVlll 

FEDERAL REGULATIONS 

40 C.F.R. §50.6 ii 

40 C.F.R. Part 51 31,32 

57 Fed. Reg. 60149 , iv 

59 Fed. Reg. 35036 iv, vi, 4,7 

59 Fed. Reg. 35042 4 

59 Fed. Reg. 35044 vii 

REGULATIONS 

UACRR307-1-4.7 (1992) XX,28
 

UACR 307-1-4.6.3 32
 

b 
I. INTRODUCTION 

This case involves air pollution from the refinery which is owned and operated by 

Defendant Phillips Petroleum Company ("Phillips") in Woods Cross, Utah. Such air pollution is 

regulated by the federal Clean Air Act ("the Act"). The issues in Phase I ofthis proceedingl 

concern the proper interpretation of the Utah State Implementation Plan (" SIP"), which was 

approved pursuant to the Act, and various permits (which Utah calls "Approval Orders") issued 

to Phillips pursuant to the SIP. 

Defendant portrays this case as one in which the company is "caught in a regulatory 'no 

man's land"' between the U.S. Environmental Protection Agency ("EPA") and the State of Utah 

Department of Environmental Quality ("State" or "DEQ"V On the contrary, this case is about a 

facility which has been operated for several years in a haphazard manner, in violation of various 

environmental requirements established to protect public health. Once EPA began acting to 

correct the company's careless behavior, Phillips concocted a number of post hoc explanations of 

why its excess emissions and large number of emissions monitor breakdowns should not be 

considered violations. High State officials have generally adopted Phillips' suggestions (with 

some notable dissent from lower-level personnel, detailed below), despite the plain language of 

the SIP and the permits which conflicts with Phillips' interpretations. 

Because there are no issues of material fact in dispute, the United States is entitled to 

judgment as a matter of law that: 1) the SIP and Approval Orders issued to Phillips require that 

the Woods Cross refinery meet hourly sulfur dioxide limits at the Sulfur Recovery Unit ("SRU"); 

1 See Exhibit 1, Order of Bifurcation, filed May 26, 1999.
 

2 See, Phillips' second Motion for Partial Summary Judgment, p. v.
 
2) Phillips is required to meet or exceed 95% efficiency at its SRU every day; and 3) Utah's 

judgments regarding the avoidability of breakdowns are not binding on EPA for purposes of 

federal enforcement. 

II. UNDISPUTED FACTS 

Pursuant to DU Civ. R. 56-1, the United States sets forth the following undisputed facts 

as a foundation on which this Motion should be considered. 

A. Facts Related to the Issue of the SRU Emission Limit Averaging Time 

1.	 The United States brought this action against Phillips under the federal Clean Air Act. 3 

Pursuant to §109 ofthe Act,4 EPA has set National Ambient Air Quality Standards 

("NAAQS ") for various air pollutants, including particulate matter. The NAAQS for 

particulate matter is called the PMlO NAAQS because particles 10 microns or smaller in 

diameter are being regulated. This is the size of particles which can be inhaled into the 

human lungs and cause health problems. EPA adopted the PMlO NAAQS in 1987, 

establishing annual and daily limits of 50 and 150 micrograms per cubic meter, 

respectively. S 

2.	 If a portion (or all) of a State exceeds the NAAQS for a particular pollutant, the Act 

requires the State to develop a plan, called a State Implementation Plan or "SIP," to show 

how the NAAQS will be met and maintained. 6 The Act gives EPA the responsibility of 

3 42 US.C. §§7401 et seq.
 

4 42 US.C. §7409.
 

S 40 C.F.R. §50.6.
 

6 42 US.C. §7410.
 

11 
reviewing the State's proposed SIP to ensure that it meets the criteria in §110(a)(2) ofthe 

Act, 42 U.S.C. §7410(a)(2).7 Thus Congress gave the State the initial choice ofwhat 

control strategy to employ in cleaning up its air but gave EPA the role of oversight, to be 

sure that the NAAQS would actually be attained. 

3.	 In the late 1980's, ambient air monitors showed that Salt Lake and Utah counties were not 

meeting the PMIO NAAQS, for as many as twenty days per year, especially in the winter. 

In 1989 three citizen groups filed a lawsuit against EPA. 8 The plaintiffs claimed that, 

because the State had failed to submit a PMIO SIP within the time allowed by the Act, the 

duty to issue such a plan had devolved to EPA. The parties signed a settlement agreement 

in January 1990 which called for submittal ofa SIP by Utah to EPA, or EPA promulgation 

of a Federal Implementation Plan, ifnecessary, by December 31, 1991. The settlement 

allowed the State to maintain the SIP development lead but emphasized EPNs 

involvement and technical oversight.9 

4.	 There were many contributors to the PMIO problem along the Wasatch Front, but the State 

determined that among others, the five petroleum refineries, including Phillips, would be 

required to reduce their emissions of sulfur dioxide in order to meet the PMlO NAAQS. In 

the atmosphere, sulfur dioxide sometimes converts into SUlfates, a type ofPM10' especially 

in relatively cold, damp conditions such as occur in the Salt Lake area in the winter. It is 

also during the winter that the Wasatch Front is most likely to experience air temperature 

7 42 U.S.C. §741O(k). 

8 Preservation Council et at. v. Reilly, Civil Action No. 89-C-262-G (D. Utah). 

9 Exhibit 2 at 2-3. 

111 
inversions, correlated with low winds, trapping PMlO and other pollution in the 

metropolitan area and increasing the probability ofNAAQS exceedances.Io 

5.	 The Governor sent Utah's PMlO submittal to EPA for approval in November 1991. EPA 

proposed approval ofthe plan in 199211 and issued its final approval in July 1994.12 By 

virtue ofthe 1994 approval, the SIP became federal law. 

6.	 The SIP requires that Phillips and the other refineries operate sulfur recovery units to 

reduce sulfur dioxide emissions.I3 However, for Phillips (and for some other sources), the 

1991 submittal did not establish a fully-developed SRU emission limit. Instead, the 

submittal contained a "placeholder" showing an hourly limit but with no number specified, 

as follows: . 

The following Non-Emissions Cap sources shall be regulated individually 

for S02 at the following emission limits: 

Point Source tons/yr 

******** 

SRU Tail Gas Incinerator (limits to be established during Section 3.1 review)I4 

(Emphasis added)
 

Section 3.1 ofthe Utah Air Conservation Regulations (which were also made part ofthe
 

SIP submittal) provides the procedure for setting emission limits in Approval Orders.
 

10 Exhibit 3 (SIP Technical Support Document) at 40-45.
 

11 57 Fed. Reg. 60149, December 18, 1992.
 

12 Exhibit 4,59 Fed. Reg. 35036, July 8, 1994.
 

13 PMlO SIP, App. A, §2.2.00. The complete SIP is attached as Exhibit 5
 

14 Id. at App. A, §2.2.00(2)(D).
 

IV 
7.	 The provision ofthe SIP which immediately follows the "placeholder" provision also 

refers to an "hourly" limit: 

Stack testing to determine hourly, daily, and annual compliance for the 

"non-cap" sources described in number 2 D, above, shaH be performed 

as directed in condition number 5 below . . . .IS 

(Emphasis added) 

8.	 "Condition 5" reiterates the fact that an hourly limit for the SRU was to be established: 

5. Stack Testing Requirements: 

The foHowing point sources have been required to comply with 

various emission rates and concentrations in the paragraphs preceding. 

The foHowing is [sic] summary ofthe testing methods and frequencies 

appropriate to each point source. ****** 

C.	 Sulfur Recovery Unit Tail-gas Incinerator 

Limitations Test Method Frequency 

S02 XXX Ib/hr CEM Continuous 

XXXppmv 

limits shaH be established through section 3.1 UACR16 

(Emphasis added) 

"CEM" in the "Test Method" column indicates that a "continuous emission monitor" is 

required. As the name suggests, a CEM is used to measure emissions on a very frequent 

basis, with ten readings every hour, which can then be averaged to determine an hourly 

number. 17 

IS Id. at A, §2.2.00(2)(E). 

16 Id. at App. A, §2.2.00(5). 

17 Exhibit 6, Deposition ofConrad Jenson at 563-565. 

v 
9.	 Nowhere in the PMlO SIP is there any indication that S02 emissions from the Phillips SRU 

are to be averaged over a 24-hour period. There are examples, however, ofindividual 

emission points at other sources for which 24-hour averages were specified,18 showing 

that when Utah wanted to establish a 24-hour average, it knew how to do so. By far the 

most common type of emission limit in the PMlO SIP, though, is hourly limits. 19 

10.	 Following the submission ofthe plan to EPA, DEQ issued Approval Orders to Phillips and 

other refineries which filled in the "placeholders," that is, they specified numbers to 

accompany the pounds per hour averaging time contained in the SIP. DEQ issued an 

Approval Order to Phillips in July 1992 which established 75.16 lbs./hr. as the SRU S02 

emission limit.20 In October 1992 DEQ issued a revised Approval Order to Phillips which 

increased the SRU limit to 95.29 Ibs./hr.21 Neither of the 1992 Phillips Approval Orders 

contains a 24-hour average for SRU S02 emissions. 

18 See, Exhibit 5 at App. A, §2.2.V.B.l.B (Kennecott smelter main stack limited to 

5700Ibs./hr. of S02, "24 hour average (calendar day)"; App. A, §1.2.F.2.K (Geneva Steel coke. 

plant SRU and coke oven gas limited to 104.5Ibs./hr. ofS02 "averaged over 24 hours using 

CEM"); and App. A, §2.2.M.2.B.2 (Englehard Stack #6 limited to 51 lbs./hr. of S02 "Averaged 

over 24 hr"). 

19 Id. There are dozens ofthese. Representative examples appear on pages 6, 11, 15,20, 

24,29,31,32,34,37,38, 102 and 110 ofthe Utah County portion of Appendix A and on pages 

15, 16, 18,25,29,30,37,40,42,45, 55, 61, 73, 77, 97, 100, 113, 118, 121, 127, 128, 136, 144, 

150, 153, 161, 184, 191 and 202 ofthe Davis and Salt Lake Counties portion ofAppendix A. 

20 Exhibit 7. 

21 Exhibit 8. 

VI 
11. EPA published its approval ofthe SIP in the Federal Register in July 1994.22 In its 

approval, EPA explicitly took notice ofthe Approval Orders, discussed the relationship of 

the Approval Orders to the 1991 SIP submittal and gave notice ofwhat would be effective 

as a matter offederal law: 

Since State adoption ofthis PMlO SIP, the State has been finalizing the permit 

conditions for stationary sources. EPA has discussed and advised the State 

on the need to ensure consistency with the State's permits and 

the federally-enforceable SIP. The State's permit program is 

in the federally-approved SIP. The final approval to the PMlO SIP 

will also make the emission limitations for the stationary sources 

federally enforceable. EPA is giving notice that should different 

emission limitations exist, EPA will enforce the more stringent 

of the two (or more) emission limitations. EPA must have assurance 

that the attainment demonstration of a nonattainment area plan is 

maintained. The less stringent emission limitation may not provide 

that assurance without a reanalysis ofthe attainment demonstration. 

It is, therefore, critical that the State maintain consistent emission 

limitations in the permits and in the federally-approved nonattainment-area plan. EPA has agreed to allow the State to update 

the emission limitations section of the SIP once a year, i.e., by 

September of each year beginning 1993. The tracking ofthis effort 

will be documented annually in the EPNState agreement. 23 

(Emphasis added.) 

Later in the same Federal Register notice, EPA restates some ofthese ideas: 

The State must update its SIP for changes to these emission 

limitations, especially for stationary sources. EPA and the State 

agree that such updates (which are SIP Revisions) will occur 

each September, as appropriate. Should differences exist between 

emission limitations, EPA will enforce, as necessary, the most 

stringent limitation.24 

22 Exhibit 4, 59 Fed. Reg. 35036, July 8, 1994. 

23 Id. at 35042 (Columns 1-2), July 8, 1994. 

24 Id. at 35044 (Column 1), July 8, 1994. 

VII 
(Emphasis added.) 

By these statements, EPA notified the State, the regulated sources and the public that the 

emission limitations in the 1992 Approval Orders (among others) were being incorporated 

as part of the SIP and that any changes to those limits would need to be processed as SIP 

reVlsIons. 

12.	 During 1982 and 1983, Phillips installed its SRU and CEM. The CEM passed its accuracy 

test in 1994 and, beginning in September 1994, Phillips employed the certified CEM to 

measure SRU emissions, reporting excess emissions on an hourly basis every calendar 

quarter for about three years to the State.2S Norman Erikson, one ofthe State inspectors 

with responsibility for assessing Phillips' SRU compliance, read those quarterly reports and 

understood the SRU limit to have an hourly basis. 26 He, in turn, prepared reports 

analyzing Phillips' compliance on an hourly basis and sent those to Phillips, which did not 

protest his analysis.27 In fact, it is quite clear that the Phillips employee in charge of 

gathering the SRU data and preparing the excess emission reports, Frankie Wood-Black, 

believed that the S02limit was an hourly one. In many internal electronic mail messages 

and other documents sent before EPA began suggesting that violations had occurred, Dr. 

Wood-Black explicitly refers to an hourly permit limit for the SRu.28 

2S Exhibit 9, Deposition ofFrankie Wood-Black, at 641-642 and 647.
 

26 Exhibit 10, Deposition ofNorman Erikson, at 83-84.
 

27 Exhibit 9, Deposition ofFrankie Wood-Black, at 651-653.
 

28 See,~, Exhibit 11, at 1, (there are 12 similar reports with similar or identical
 

language); Exhibit 12 at 3; Ex. 9, Deposition ofFrankie Wood-Black, at 706-707; Exhibit 13 at 

3; and Exhibit 14, Letter from Frankie Wood-Black to Mike Beheshti at 2. 

Vlll 
13.	 In July 1995 DEQ issued a revised Approval Order to Phillips which raised the SRU S02 

emission limit to 114.42Ibs./hr.29 The 1995 Phillips Approval Order does not contain a 

24-hour average for SRU S02 emissions. The DEQ staff engineer who wrote the 1995 

pennit, testifying for the State under Rule 30(b)(6), stated that he understood the 

Approval Orders to contain hourly limits: 

Q: But your understanding is that when the Phillips approval orders 

were written, they incorporated pounds per hour emission limits for 

S02 from the SRU? 

A: Yes. The notice ofintent that came in, the information was in 

pounds per hour. The emission of S02 from the SRU was in pounds 

per hour, and that is the way that was entered into the 1995 pennit, 

I believe.30 

14.	 On November 7, 1996, EPA sent Phillips a Request for Information under §114 ofthe 

Ace1seeking, among other things, the SRU S02 excess emission reports which Phillips 

had been sending to Utah. 32 Phillips responded by letter ofDecember 9, 1996, raising 

many objections to the Request and supplying the reports, but nowhere in the letter did 

Phillips suggest that the emissions which its own reports listed on an hourly basis 

should be averaged over 24 hours.33 Instead Phillips focuses on the State's supposedly 

exclusive right to judge the avoidability ofbreakdowns and the relationship between Utah 

29 Exhibit 15, at 8.
 

30 Exhibit 16, Deposition ofMike Beheshti, at 15.
 

31 42 U.S.C. §7414.
 

32 Exhibit 17, at page 2, item 5.
 

33 Exhibit 18, Letter from Richard Walsh to Lee Hanley.
 

IX 
and EPA. 34 In addition, Phillips threatens EPA, stating, "... EPA's posture is contrary to 

current law and, if pursued, will subject EPA to legal challenge and severe political 

scrutiny. ,,35 

15.	 In January 1997, Norman Erikson, the State inspector, drafted a Notice of Violation 

("NOV") for excess emissions of S02 from the SRU during the third calendar quarter of 

1996.36 Mr. Erikson testified that he understood the limit to be an hourly one, based on 

Phillips' own quarterly Excess Emission Reports. 37 However, Mr. Erikson's supervisor, 

JeffDean, told Mr. Erikson that the NOV "wasn't going to be issued. ,,38 Mr. Dean 

testified that no NOV was warranted because it was a daily limit. 39 Mr. Dean also testified 

that he had been aware since 1994 that Mr. Erikson was evaluating Phillips' compliance on 

an hourly basis and yet had never suggested to Mr. Erikson that the data should be 

analyzed on a daily basis. 40 Even Mr. Dean seemed to think there was some possibility 

that the State NOV based on hourly averaging might end up being issued, because he 

wrote, "Norm, hang on to these NOVs just in case" on the draft which Mr. Erikson had 

34 Id. at 5-10.
 

35 Id. at 5.
 

36 Exhibit 10, Deposition ofNorman Erikson, at 82-84.
 

37 Id. See, also, id. at 169.
 

38 Id. at 86-87.
 

39 Exhibit 19, Deposition ofJeffDean, at 53-54.
 

40 Id. at 54-55.
 

x 
prepared. 41 Apparently the ultimate decision maker was an even higher level official, Mr. 

Marvin Maxell, who was in charge of compliance matters for the Division of Air Quality.42 

16.	 Mr. Dean further testified that the supposed 24-hour average does not appear anywhere in 

the 1995 Approval Order. 43 He also said that when he received the draft NOV he did not 

look at the Approval Order, he just relied on his general understanding that it was a daily 

limit. 44 Finally, he testified that he was not aware of anyone from the compliance section 

consulting with the permits section to determine what the latter group thought the SRU 

averaging time was in the Phillips' Approval Order.4s This was in spite ofMr. Maxell's 

pronouncement that U[i]fthere's a problem with the approval order, if it conflicts with the 

SIP or just ifit's vague, Uthen the compliance staffshould consult with the permit writer to 

learn that person's understanding ofthe applicable requirement.46 

17.	 On March 6, 1997, EPA issued an NOV to Phillips alleging, among other things, that 

Phillips had exceeded the SRU S02 emission limits in the 1992 and 1995 Approval Orders 

for substantial periods oftime during 1994-96.47 EPA issued the NOV after discussing the 

excess emissions in some detail with the State at a meeting on October 7, 1996. At the 

41 Exhibit 10, Deposition ofNorman Erikson, at 92.
 

42 Exhibit 19, Deposition ofJeffDean, at 61.
 

43 Id. at 73-75.
 

44 Id. at 75.
 

4S Id.
 

46 Exhibit 20, Deposition ofMarv Maxell, at 25.
 

47 Exhibit 21, EPA NOV, Docket No. CAA(113)VIII-96-13, at paragraphs 2-5.
 

Xl 
meeting, DEQ claimed only that the excess hourly emissions were all due to unavoidable 

breakdowns of control equipment, not that there was a 24-hour average which applied to 

the SRU S02 emission limit.48 

18.	 . On March 20, 1997, the company and EPA met to discuss the allegations in the NOV. 

The parties agreed that the contents ofthat meeting would be kept confidential based on 

the theory that the meeting could be considered settlement negotiations. 

19.	 On March 24, 1997, Phillips wrote to DEQ, requesting a "Final Determination of 

Compliance" for the Woods Cross Refinery.49 Among other things, Phillips sought a 

"Final finding and determination that all excess emissions from the Refinery SRU from 

June 1, 1994 to June 30, 1996 were unavoidable and do not warrant a Notice of 

Violation" and a "Final finding and determination that Phillips is in compliance with Utah 

regulations and law, including the Utah State Implementation Plan, or under any 

applicable agreed order, that relate to or limit excess emissions from the Refinery SRU"so 

Nowhere in the March 24, 1997 letter does Phillips suggest that there was a 24-hour 

average which applied to the SRU S02 emission limit. 

20.	 Utah responded promptly, issuing an "Administrative Determination" on April 9, 1997. s1 

The Administrative Determination "confirms that a final administrative determination has 

48 Exhibit 22, Notes taken by State facilitator.
 

49 Exhibit 23, Letter from Richard Walsh to Ursula Trueman, March 24, 1997.
 

so Id. at 3, items 4 and 5.
 

S1 Exhibit 24. The Administrative Determination is signed by Ursula Trueman as
 

Executive Secretary ofthe Utah Air Quality Board, but there is nothing in the record to suggest 

that the Board considered Phillips' request for a "Final Determination," which was sent to DEQ. 

Xll 
been made that no Notice of Violation was warranted for reported excess emissions of 

sulfur oxides ... for the time period from July, 1994, to June, 1996, ....,,52 There is no 

mention of a 24-hour average figuring into the State's determination. In fact, there is no 

explanation whatsoever ofwhy the State chose to excuse the excess emissions which 

Phillips had reported. 

21.	 Phillips'lawyer wrote to DEQ on May 1, 1997, requesting confirmation by the State that 

the SRU S02 emission limit averaging time was 24 hours, not one hour. 53 To facilitate the 

State's response, Phillips even supplied a draft of a letter back to the company. 54 DEQ 

was able to respond very quickly, sending the confirmation Phillips sought on May 6. 55 

The May 6 letter states clearly that the limit is a daily one. What is not clear is the basis 

for that conclusion. The letter cites Condition 6 ofthe 1995 Approval Order but does not 

explain what aspect of Condition 6 demonstrates a daily (or 24 hour) average for the 

SRU The letter also cites "Section IX, Part H.2, Subsection C (Compliance 

Demonstration) ofthe SIP", but Plaintiff does not recognize that citation as referring to 

any part ofthe SIP as it was approved in 1994. The State was probably referring to 

Appendix A, §2.1.M.C, but that section discusses the daily limit for the refinery as a 

whole, not the emission limit for the SRU itself. 

52 rd. at ~3.
 

53 Exhibit 25, letter from Richard Walsh to Ursula Trueman, May 1, 1997.
 

54 Exhibit 26, draft letter from Ursula Trueman to Richard Walsh, with fax cover page
 

from Richard Walsh to Marv Maxell, May 1, 1997. 

55 Exhibit 27, letter from Ursula Trueman to Richard Walsh, May 6, 1997. 

Xl11 
22.	 EPA issued a revised NOV to Phillips on August 13, 1997.56 The main effect ofthe 

revision was to update the previous NOV to include later violations. 

23 . Various discussions among the State, Phillips and EPA during the summer and fall of 1997 

failed to dispel the disagreements regarding the applicable law and Phillips' liability. In 

support ofits IIclientII company,57 DEQ sent another letter to Phillips on November 20, 

1997. 58	 That letter stated: IIAt the time the SIP was written, it was determined that daily 

emission limits would be established. This was absolutely the clear intent ofthe staff who 

wrote the SIP, the basis of our negotiations with all ofthe industrial sources in developing 

the SIP, and the intent of the Air Quality Board who approved the SIP. 1159 

24.	 On November 25, 1997, the United States filed a complaint against Phillips in this court. 

Plaintiff alleged, among other things, that "Phillips exceeded the hourly limit" on "over 

1000 occasions. 1160 

25.	 On January 7, 1998, Bill Reiss and Norm Erikson ofDEQ appeared before the Utah Air 

Quality Board ("UAQB") to discuss issues related to the Phillips refinery. Mr. Reiss first 

refers to lithe hourly limit. 1161 In explaining why the "hourly limit" should be considered to 

56 Exhibit 28, EPA NOV, Docket No. CAA(113)VIII-97-09.
 

57 See Exhibit 29, deposition ofJohn Blanchard, State permit writer testifying as Rule
 

30(b)(6) witness, at 207-8. 

58 Exhibit 30, letter from Ursula Trueman to Anthony Benedict, November 20, 1997. 

59 ld. at p. 1, ~4. (Bolding added. Italics in original.) 

60 Original complaint, paragraphs 25, 34 and 35. 

61 Exhibit 31 at 3. 

XlV 
be subject to an unwritten 24-hour average, Mr. Reiss notes that the Approval Order 

issued to Phillips specifies 24-hour averaging for emissions ofPMlO and nitrogen oxides.62 

He then points out, "So its [sic] only for the S02limit where we've seen any deviation with 

any ofthe SIP limits for any of the five refineries. ,,63 Mr. Reiss goes on, "As such, its [sic] 

the opinion of both DAQ [the Division of Air Quality within the Department of 

Environmental Quality] and Phillips Petroleum Company that our approval order has in 

essence misstated the intent of the SIP. ,,64 The UAQB took no action regarding the 

Phillips Approval Order at the meeting, although Phillips' second Motion for Partial 

Summary Judgment in this case suggests otherwise.65 

26.	 On March 18, 1998, DEQ sent Phillips a Notice ofIntent to revise the 1995 Approval 

Order. 66 The notice explains that the proposed revised Approval Order would change the 

pounds per hour limit to one expressed in tons per day. The cover letter characterizes the 

change as a "correction."67 In his deposition as a Rule 30(b)(6) witness for the State, the 

permit writer, Mike Beheshti, testified that he was instructed to make this correction by 

his second-level supervisor, Cheryl Heying.68 He also testified that he felt under pressure 

62 Id. 

63 Id.
 

64 Id. (Emphasis added.)
 

65 See Phillips' Motion at xvii, paragraph 25, last sentence.
 

66 Exhibit 32.
 

67 Id. (Emphasis added.)
 

68 Exhibit 16, at 35.
 

xv 
to make the change quickly.69 He further testified that Ms. Heying's professed rationale 

for ~aking the change was that proper application of the SIP language would make this a 

reasonable change. 70 However, Mr. Beheshti was not able to identify any language in the 

SIP that supported 24-hour averaging for the SRU. 71 After reviewing the various relevant 

SIP provisions, Mr. Beheshti testified that the daily limits in the SIP for the refinery as a 

whole would not preclude the State from setting hourly limits for the SRU.n Further, 

Mr. Beheshti testified that he believed the SRU limits in the pre-1998 Approval Orders 

were based on an hourly averaging time.73 Finally, Mr. Beheshti confirmed that a change 

in the SRU averaging time from one hour to 24 hours would inevitably be a relaxation of 

the emission limit and that such a relaxation could allow greater emissions.74 

27.	 No public notice and opportunity for comment accompanied the March 1998 Intent to 

Approve. There is no provision in the Utah Air Conservation Regulations for making 

changes to Approval Orders without going through the required notice and opportunity 

for comment procedures contained in Section 3.1. 75 Furthermore, Section 3.2.4 

empowers only "the Committee" (now presumably the Utah Air Quality Board) to make 

69 Id. at 36. 

70 Id. 

71 Id. at 36-39. 

72 Id. at 43. 

73 Id. 

74 Id. at 50.
 

75 UACR R307-1-3.1. (1992).
 

XVI 
changes to pennit limits, and then only after concluding that the adjustments do not affect 

attaining the applicable NAAQS. 76 There is nothing in the record to indicate that the 

UAQB conducted the necessary analysis to support a finding that the revised limit will not 

affect achieving the NAAQS. 

28.	 On April 17, 1998, EPA sent Utah a letter explaining in detail why the SRU change 

proposed in the March 18 Intent to Approve would be improper. 77 

29.	 Despite the uncertainty in the permit writer's mind as to the rationale for the change and 

despite the deviation from the required procedure for amending an Approval Order, on 

April 20, 1998, DEQ issued a revised permit to Phillips containing a tons per day SRU 

S02 emission limit. 78 Utah has not tried to make any other changes to the SRU S02 

emission limit since April 1998. 

B. Facts Related to the Issue of the SRU Efficiency Requirement 

1.	 Section A, above, is incorporated here by reference. 

2.	 "RACT" refers to Reasonably Available Control Technology, which is required by the 

Clean Air Act for areas which are not attaining a NAAQS. 79 The Utah PMlO SIP states, 

"The basic RACT applied to all refineries was: a sulfur removal unit/plant (SRU) that will 

remove 95% ofthe sulfur from the streams fed to it ....,,80 Similarly, the refinery section 

76 UACRR307-1-3.2.4. (1992).
 

77 Exhibit 33.
 

78 Exhibit 34.
 

79 42 U.S.C. §7502(c)(I).
 

80 Exhibit 5, Utah PMlO SIP, §9.A.6(3)(b)(ii) [at 43].
 

XVIi 
ofthe Salt LakelDavis counties portion of Appendix A requires, "sulfur removal 

units/plants (SRU) that are at least 95% effective in removing sulfur from the streams fed 

to the unit .... "81 

3.	 The cover letter to the October 1992 Approval Order refers to 95% as the amount that 

must be removed. 82 

4.	 Section 5.C.2 ofthe 1995 Phillips Approval Order contains the following requirement: 

"Appropriate adjustments to the SRU operation parameters shall be made to ensure 95%+ 

efficiency on a daily basis."83 Section 5.C goes on to give details ofPhillips' additional 

obligations if SRU efficiency drops below 95%. In summary, if a daily SRU emission limit 

is exceeded (that is, 24 times the maximum hourly limit allowed by the SIP and Approval 

Order), a mass balance ofthe inputs and outputs to and from the SRU must be performed 

within five days to determine SRU efficiency. Furthermore, the refinery must report the 

problem to the State. Finally, the refinery must isolate the problem within five days and 

make a permanent repair or modification within fifteen days of discovery. 84 

5.	 In July 1998, the United States filed an Amended Complaint in this action, adding three 

counts related to Phillips' failures to operate the SRU at or above 95% efficiency.85 In its 

81 Id. at, Appendix A, §2.1.M.A [at 5].
 

82 Exhibit 8, October 29, 1992 Approval Order at 1.
 

83 Exhibit 15 at 6. (Emphasis added.)
 

84 Id.
 

8S Amended Complaint, paragraphs 42-53. 

XVlll 
Answer, Phillips denied that there was any violation for failure to maintain 95% 

efficiency.86 

6.	 In the Rule 30(b)(6) deposition of the State, three witnesses testified that Phillips had an 

obligation to achieve 95% efficiency or better every day.87 

7.	 Even a key former Phillips employee understood the 1995 Approval Order to require the 

SRU to achieve 95% efficiency on a daily basis. Walter Kramer, one of the Phillips staff 

charged with the responsibility of developing the relevant portion of the 1995 Approval 

Order, testified as follows: 

Q:	 In negotiating this language with the state, was there any discussion 

about whether Phillips had to meet the 95-percent efficiency 

requirement on a continuous basis? 

A:	 I believe the intent was to meet the 95 percent on a daily basis. The 

95-percent efficiency, that is. 

Q:	 Is that something that you discussed with the state? 

A:	 Yes, sir. 

Q:	 And that would have been Bill Reiss and Montie Keller? 

A:	 Yes, sir. gg 

8.	 Mr. Kramer's successor, Frankie Wood-Black, also recognized the obligation to meet 95% 

on a continuing basis. She wrote to the State permit writer: " ... Phillips understands 

86 ~swer to Amended Complaint at paragraphs 42-53. 

87 Exhibit 16, Deposition ofMike Beheshti at 29-30; Exhibit 35, Deposition ofWilliam 

Reiss at 16 and 164; and Exhibit 36, Deposition ofMontie Keller at 344-45. 

88 Exhibit 37, Deposition ofWalter Kramer at 133. See, also, id. at 68 and 143. 

XIX 
that the SRU is to meet both conditions - the 95% removal rate and the pound per hour 

limitation. ,,89 

C. Facts Related to the Issue of EPA's Right to Determine Avoidabiiity of Breakdowns for 

Purposes of Federal Enforcement 

1.	 Sections A and B, above, are incorporated here by reference. 

2.	 The SIP and the Approval Orders require that Phillips "install, calibrate, maintain and 

operate a continuous S02 emissions monitoring system on the Sulfur Recovery Unit 

Incinerator stack. ,,90 That monitoring system is the sole means for measuring Phillips' 

SRU S02 emissions, and thus it is critical to determining whether Phillips violates its SRU 

emission limitations. As described in Section B, above, it is also critical to determining 

violations ofthe SRU efficiency requirements. 

3.	 UACR § 4.7, which is part of the SIP, provides an exemption for emissions which result 

from an unavoidable breakdown.91 This exemption is limited, however: "Breakdowns 

that are caused entirely or in part by poor maintenance, careless operation, or any other 

preventable upset condition or preventable equipment breakdown shall not be considered 

unavoidable breakdown [sic]."92 Thus careful scrutiny is required to know whether 

emissions during a breakdown are to be considered violations. No provision ofthe SIP or 

89 Exhibit 14, Letter from Frankie Wood-Black to Mike Beheshti, May 30, 1995. 

90 See Exhibit 8 [10/92 Approval Order] at §16 and Exhibit 15 [95 Approval Order] at 

§20. 

91 UACRR307-1-4.7 (1992). 

92 Id. 

:xx: 
the Approval Orders, all of which are federally enforceable, provides for exclusive review 

by the State of such situations to determine avoidability of breakdowns. 

4.	 There is no provision in the SIP or the Approval Orders which states that CEM downtime 

can be excused due to unavoidable breakdowns. 

xxi 
m. ARGUMENT 

The United States is entitled to summary judgment on each of the three bifurcated legal 

issues because the "pleadings, depositions, answers to interrogatories, and admissions on file, 

together with affidavits, if any, show that there are no genuine issues as to any material facts", and 

the United States is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c). Whether a 

fact is "material" is determined by the substantive law, in this case the Clean Air Act. Summary 

judgment is appropriate here because no reasonable trier offact could find for the non-moving 

party. See, Anderson v. Liberty Lobby, Inc. 477 U.S. 242 (1986). The material facts set forth in 

the United States' statement are not in genuine dispute. Accordingly, summary judgment on each 

ofthe three bifurcated issues is appropriate. 

Standard ofReview 

The legal issues in dispute herein all concern the proper interpretation ofthe Utah PMlO 

SIP. Section 110 ofthe Clean Air Act, 42 U.S.C. §7410 requires that each State develop a State 

Implementation Plan ("SIP") that is designed to ensure that air quality within the State meets 

certain standards, known as National Ambient Air Quality Standards, or "NAAQS", that are 

designed to protect the public health. If the State fails to develop such a plan, then EPA is 

charged with the duty of promulgating the plan itself The specific criteria that each SIP must 

meet are set forth in Section 110 ofthe Act. 

Section 110 of the Act gives the State the responsibility in the first instance of determining 

how much emissions must be reduced in a particular region to ensure that the air quality meets the 

NAAQS, and determining precisely how those reductions should be achieved. As long as the 

State can establish that the mix of emissions limitations it has selected is adequate to ensure 

-1­
attainment, EPA is not authorized to insist upon different limits. But while the State is given 

considerable authority in the SIP development process to establish emissions limitations, 

ultimately its proposed SIP must be approved by EPA, 93 This is not a "rubber stamp" approval 

process. Rather, Section 110 requires that EPA ensure that the proposed emissions cutbacks are, 

in fact, sufficient to attain the NAAQS, that the SIP requirements are legally enforceable, and that 

other criteria established by the Act are met. 

As the federal courts time and again have ruled, upon approval by EPA the SIP becomes 

federal law, subject to the jurisdiction ofthe federal courts. See, e.g., Union Electric Co. v. EPA, 

515 F.2d 206,211 (8th Cir. 1975), aff'd. 427 US. 246 (1976) ("Upon approval of promulgation 

of a State Implementation Plan, the requirements thereof have the force and effect offederal 

law...."); Navistar International Transportation Co. v. EPA, 858 F. 2d 282,284 (6th Cir. 1988) 

("Emission limits pursuant to SIP are enforceable as federal law...."). The structure ofthe 

Clean Air Act and applicable case law require that if the State and EPA have conflicting 

interpretations of a SIP in the context of a federal enforcement action, EPA's interpretation ofthe 

SIP must be accorded deference. See Chevron, US.A, v. Natural Resources Defense Council, 

467 US. 837, 844 (1984); US. West. Inc. v. FCC, 182 F. 3d 1224 (lOth Cir. 1999) (Court defers 

to agency interpretation ifit is reasonable.) As observed by one court: 

[I]f a provision of the [SIP] were subject to two possible interpretations, the 

interpretation given to the provision by the EPA is the proper interpretation. This 

is because the other interpretation was not approved by the EPA and did not 

properly become a provision of [the] SIP. 

93 42 U.S.C. §7410(k). 

-2­
United States v. Congoleum Corp., 635 F. Supp 174,177 n.4 (E.D. Pa. 1986), recon. denied in 

part, granted in part, 646 F. Supp 1142 (E.D. Pa. 1986). 

In this case, Phillips challenges EPA's interpretation ofthe Utah SIP relating to three 

discrete issues: 1. whether the 1992 and 1995 Approval Orders required Phillips to comply with a 

never-to-be-exceeded hourly limit at its SRU, or whether it is allowed to average its emissions 

over a 24-hour period; 2. whether Phillips is required to achieve 95% efficiency at its SRU on 

each and every day of operation; and 3. whether, in approving the SIP, EPA delegated to the 

State the authority to make determinations, that are legally binding on the United States, that 

certain ofPhillips' violations were unavoidable and, therefore, legally excused. Applying the 

deferential standard of review that the Supreme Court articulated in Chevron, it is clear that 

EPA's interpretation ofthe Utah SIP provisions is reasonable. But even if one accorded no 

deference to EPA, its interpretation should still prevail. On each of the three bifurcated issues, the 

position advanced by the United States is completely consistent with the clear wording of the 

SIP, whereas the position advanced by Phillips and (for issue number 1, the State, also) is not. 

Thus, an award of summary judgment is appropriate. 

A. Phillips is Subject to A Never-to-be-Exceeded Hourly Limit 

1. Introduction 

The United States contends that the October 1992 and July 1995 Approval Orders issued 

by the State clearly and unambiguously set forth emissions limits that Phillips must meet at its 

-3­
SRU during each hour of operation.94 Phillips' position on this issue is not clear. At times, 

Phillips appears to argue that the Approval Orders in fact provide for the daily averaging of 

emissions. At other times, Phillips appears to concede that the Orders require hourly compliance, 

but argues that the State always intended to allow for 24-hour averaging, and that the State's 

intent should be given effect. This latter position has also been adopted by the State ofUtah in 

correspondence sent to EPA seeking to justify its modification ofPhillips' Approval Order terms. 

As is set forth below, the plain language ofthe Utah PMlO SIP, and the Approval Orders 

issued pursuant to that SIP require that the SRU meet an hourly limitation. Beyond the plain 

language ofthe Approval Orders, the testimony ofthe State's own employees confirms that the 

Orders provide for hourly limits. Moreover, Phillips' own operations in the relevant time period 

suggest that even it knew that it was subject to an hourly limit. For these reasons, the United 

States is entitled to summary judgment on the first bifurcated issue. 

2. The State Consistently Established Hourly Limits for the SRU 

From 1991 until 1998, the State ofUtah repeatedly established emissions limitations for 

the Phillips SRU that were expressed as hourly limits. In drafting its proposed SIP limits for 

Phillips, the State differentiated between two distinct categories of sources within the refinery. In 

94 As set forth more fully in the United States' Response to Phillips' Second Motion for 

Partial Summary Judgment at footnote 11, the October 1992 and July 1995 Approval Orders do 

not have the same status as a matter offederal law. The October 1992 Order had been reviewed 

by EPA prior to the time that it approved the Utah PMlO SIP, and the limits therein were 

incorporated by reference into the SIP. See, 59 Fed. Reg. 35036, 35042 (July 8, 1994). The July 

1995 Order was never submitted to EPA as a proposed SIP revision and, therefore, does not 

modify the legally applicable emissions limitations for the Phillips SRU 

As was also set forth in our Response, it is the position ofthe United States that the 1998 

Approval Order does not modify the applicable SIP requirements because, among other reasons, 

it was never submitted to EPA, and approved by EPA as a SIP revision. 

-4­
Section 2.2.00.2.B, the State listed 27 separate emissions sources that were to be regulated 

collectively. These units were referred to as the "capped" sources. Emissions from these sources 

were computed based upon the amount of fuel combusted, and were to be determined daily.95 

In addition to the "capped" sources, which were grouped together and given a collective 

emissions limitation, the State also provided that certain sources were to have individual emissions 

limits established. Section 2.2.00.2.D, entitled "Individual Point Source Limitation" provided: 

SOz emissions limits shall be individually set for each point source not designated 

as being in the emissions cap. The following Non-Emissions Cap Sources shall be 

regulated individually for SOz at the following emission limits: 

Point Source tons/yr 

SRU Tailgas Incinerator (limits to be established during Section 3.1 review)96 

Because the individual SRU had not been constructed at the time the SIP was proposed, there 

were no numerical limits set forth for the unit. Rather, the SIP set forth three "placeholders," 

which the State proposed to fill in with specific numerical values at a later date pursuant to 

Section 3.1 ofthe Utah Administrative Code. These placeholders were expressed in terms of 

"pounds per hour," "tons per year" and "parts per million volume." There was no "placeholder" 

to indicate that the State would also set forth an emissions limit for the SRU that was expressed in 

tons per day or that expressly specified 24-hour averaging. 

95 Exhibit 5 at § 2.2.00.2.CA provides as follows:
 

Total 24-hour S02 emissions for the sources included in the emissions cap shall be
 

calculated by adding the daily results ofthe above SOz emissions equations for
 

natural gas, plant gas and fuel oil combusted. Results shall be tabulated every day.
 

96 Id. at App. A, §2.2.00.2.D. (Emphasis added.)
 

-5­
The State's differing treatment ofthe "capped" sources, and those point sources for which 

individual emissions limits were to be established suggests a conscious intent to regulate certain 

emissions sources within the refinery differently from others. Significantly, for purposes ofthis 

motion, the absence of any placeholder that established 24-hour averaging for the SRU should be 

contrasted with other portions ofthe Phillips SIP, which did make it clear that emissions were to 

be looked at on a 24-hour basis. 97 The failure to include any "placeholder" expressed in terms of 

"tons per day" or denoting 24-hour averaging shows that the Phillips SRU was to be regulated on 

an hourly basis. 98 

In addition to the language ofthe proposed SIP itself, the fact that the State consistently 

issued Approval Orders that filled in the "placeholders" with hourly values makes it clear that it 

intended to regulate the SRU on an hourly basis. The State first filled in the "placeholder" 

language for the SRU in its July 1992 Approval Order. This Approval Order set forth a limit for 

the SRU of76.16 lbs./hr. In setting this limit, the State simply adopted the emission limitation 

that Phillips itself proposed when it submitted its August 2, 1991 Notice ofIntent to construct the 

SRU. In that Notice, Phillips proposed an S02 emissions limitation for the SRU of76.2 lbs./hr. 

97 Id. at §2.2.00.2.A (1) and (2) (tons per day S02limits set for refinery as a whole); 

§2.2.00.C (1) (24-hour averaging used to establish emissions from certain "capped" sources) 

98 There is nothing unique about the State's treatment ofPhillips. The sections ofthe SIP 

dealing with the Amoco, Chevron, Crysen and Flying J refineries each differentiated between 

"capped" sources and those for which individual limits were to be established. 

In addition to the "placeholders," the SIP also set forth stack testing requirements for the 

SRU. These requirements also referred to an hourly limit. See, Undisputed Facts Nos. 7 and 8. 

-6­
and an annual limit of317 tons per year. 99 Nowhere in the Notice ofIntent does Phillips propose 

an emissions limitation for the SRU that is expressed as a daily, or 24-hour, average limit. 

Shortly after the State had issued the July 1992 Approval Order, Phillips sought to change 

the emissions limits for the SRU Thus, on October 12, 1992, Phillips wrote to the State 

proposing a revised limit of 95 .29 lbs./hr. for the SRU100 Once again, the limits that Phillips 

itself proposed were set forth on an hourly basis, with no mention of corresponding daily or 24­

hour averaged limits. This limit, 95.29 lbslhr, was accepted by the State and embodied in an 

October 29, 1992 Approval Order. That the State viewed the new limit as an hourly one is made 

clear in the first paragraph of the Order which states: "Condition 5.E.2 has been changed to show 

a change from 96% to 95% control by changing the allowable S02 emissions in pounds per 

hour."101 This October 1992 Approval Order was transmitted to EPA for review and approval. 

EPA accepted the limits contained in the October 1992 Approval Order, and incorporated them 

by reference, when it approved the Utah SIP in July 1994.102 

99 Exhibit 38, August 2, 1991 letter from Max Staples (signed by Waiter Kramer) to the 

State, transmitting Phillips' Notice ofIntent to construct the SRU The proposed emission 

limitations are set forth at Tables 5-2 and 5-3 (located between pages 10 and 11 ofPhillips' 

Notice). 

100 See Exhibit 39, October 12, 1992 letter from Max Staples to the State. 

101 See Exhibit 8 (October 1992 Approval Order) at 1. Emphasis added. 

102 That EPA accepted the limits set forth in the October 1992 Approval Order as being 

the federally enforceable SIP limits is made clear in EPA's Federal Register Notice approving the 

SIP. See Exhibit 4, 59 Fed. Reg. 35036,35042 ("Since State adoption ofthis PMlO SIP, the State 

has been finalizing the permit conditions for stationary sources....The final approval to the PMlO 

SIP will also make the emission limitations for the stationary sources federally enforceable"). 

-7­
The October 1992 Order was revised again by the State in July 1995, pursuant to another 

request from Phillips. The July 1995 Approval Order set forth a table that listed "average" and 

"maximum" emissions, both ofwhich are expressed in terms ofpounds per hour, for various 

pieces of equipment. For the SRU, the "maximum allowable emissions" were 114.42 pounds per 

hour. 103 The State's use of the phrase "Maximum Emissions lbs/hr" could not be clearer. The 

State intended that the SRU never emit more than 114.42 pounds of S02 in any given hour. To 

interpret this table as allowing Phillips to emit more than 114.42 pounds of sulfur dioxide in any 

given hour, provided that the 24-hour average stayed below 114.42 pounds completely reads out 

the "Maximum Emissions" column. The table also set forth a limit for the total emissions allowed 

from the SRU on an annual basis. Again, however, the July 1995 Approval Order does not set 

forth any emission limitation for the SRU that is expressed in terms of "tons per day" or that 

expressly refers to the concept of 24-hour averaging. 

This chronology clearly establishes that both the State and Phillips believed that the SRU 

was to be regulated on an hourly basis. The language ofthe SIP proposed by the State in 1991 

established that emissions limits for the SRU would be established on an hourly basis, with no 

mention ofdaily or 24-hour averaged limits. On three separate occasions thereafter, Phillips itself 

proposed limits for its SRU expressed in terms of an hourly limit, and three times the State 

103 See Exhibit 15, July 1995 Approval Order, at 7, Condition 6.A. The Approval Order 

actually contains two tables, with one setting limits to be applied prior to Phillips' installation of a 

Fluid Catalytic Cracking Unit ("FCC") and the other setting limits that applied after the 

installation ofthe FCC. The limits set forth for the SRU remain unchanged. More importantly, 

however, is the fact that for some sources, i.e., the TCC Furnace and the CO Boiler, the Order 

sets forth different average and maximum limits depending upon whether Phillips was processing 

regular or flux crude. For the SRU, the average and maximum values remain the same: 114.42 

lbs./hr. 

-8­
accepted Phillips' proposals and established hourly limits for the SRU Had either the State or 

Philips believed that 24-hour averaging was to be applied at the SRU, they had multiple 

opportunities to embody this concept in an Approval Order. Their repeated failure to do so 

makes it clear that they understood that an hourly limitation was being established. 

3. Utah's Regulation of Other Sources in the SIP Shows It Set an Hourly Limit 

for Phillips 

In addition to the clear language ofPhillips' Approval Orders, the State's treatment of 

other sources shows that it clearly understood how to establish emissions limitations that set forth 

daily or 24-hour averaged limits. For example, in Section 2.2.F ofthe SIP, the State established 

emission limitations for the Centrex Corporation that set both hourly and 24-hour average values 

for particular pieces of equipment. Thus, for the Rotary Kiln #3 Baghouse Vent, the State 

established a one hour limit for NOx of98 lblhr and a "24 hr rolling avg" of70 Iblhr. 104 Other 

examples ofthe State's expression ofa 24 hour average abound: for the Kennecott smelter main 

stack, the State established a limit of 5,700 lbs/hr "24-hour average (calendar day)"lOS; for the 

Geneva Steel coke plant SRU a limit of 104.5 lbs/hr "averaged over 24 hours using CEM"; and 

for the Engelhard Stack #6, a limit of 51 lbslhr "averaged over 24 hourS.,,106 

The examples set forth above, each ofwhich clearly and unambiguously provide for a daily 

or 24-hour averaging time, demonstrate beyond doubt that the State was familiar with the concept 

104 See Exhibit 5, Utah SIP at App. A §2.2.F.2.A and B. In subsection B, the State used 

the same nomenclature to establish limits for the #4 Baghouse Vent. These limits were'126lblhr 

as an hourly limit and 90 lblhr "24 hr rolling avg." 

lOS Id. at App. A, §2.2.Y.1.B 

106 Id. at App. A, §1.2.F.2.K (Geneva Steel); §2.2.M.2.B.2 (Engelhard) 

-9­
of24 hour averaging, and knew how to apply that concept in the regulation of certain of its 

sources. When one juxtaposes those provisions against the dozens of instances, including Phillips, 

in which the State set forth hourly limits with no averaging times expressed, the only logical 

conclusion that can be drawn is that the State consciously determined to establish different 

averaging times for some sources than others,107 and that, for the Phillips SRU, that the State 

intended to impose an hourly limit. 

Moreover, it is clear from an examination ofthe SIP itselfthat, by far the most common 

type of emissions limit established by the State was an hourly one. There are literally dozens of 

instances in which the State set forth emissions limits for its sources expressed in terms of 

"pounds per hour", compared with the relatively few that expressly provide for 24-hour 

averaging. 108 Thus, there is nothing unusual about reading the emissions limits for the Phillips as 

being hourly in nature, as that is how the State chose to regulate most of its sources. 109 

107 There is nothing infirm about the State's decision to provide different averaging times 

for different sources. As the Supreme Court noted in Train v. NRDC, 421 U.S. 60, 79 (1975) a 

state is free to adopt whatever mix of emissions limitations it desires, provided the SIP provides 

for the attainment ofthe standards: 

Under § 110(a)(2), the Agency is required to approve a state plan which provides 

for the timely attainment and subsequent maintenance of ambient air standards, and 

which also satisfies that section's other general requirements. The Act gives the 

Agency no authority to question the wisdom of a State's choices of emission 

limitations ifthey are part of a plan which satisfies the standards of § 11O(a)(2).... 

Emphasis in original. 

108 See examples listed in Undisputed Fact #9, and the footnotes cited therein. 

109 Thus, the State's letter to Phillips, dated November 20, 1997, asserting that daily limits 

formed the basis for negotiation with all ofthe industrial sources [Undisputed Fact No. 23] is at 

odds with the language ofthe SIP itself, which clearly regulated the majority ofsources on an 

hourly, rather than a daily basis. 

-10­
4. The State's Own Witnesses Agreed that the Approval Orders Establish Hourly 

Limits 

Testimony by the State's own witnesses provides even further support for the proposition 

that the October 1992 and July 1995 Approval Orders set forth hourly limits. For example, Bill 

Reiss of the Utah DEQ noted at a January 7, 1998 meeting of the Utah Air Quality Board that the 

approval order issued to Phillips "misstated the intent of the SIP" by not providing for the 

averaging of emissions on a 24-hour basis. 110 Later, testifying for the State pursuant to Fed. R. 

Civ. P. 30(b)(6), Mr. Reiss again acknowledged that the concept of24-hour averaging was not 

explicit in the order: 

Q. So, the State always meant there to be a 24-hour average. It just didn't say it 

very well in the approval orders. 

A. Yeah, that's my understanding. I think you can punch the calculator keys and 

come up with those numbers and convince yourself that they're still preserved. 

However, they don't appear explicitly in the approval order. 111 

Moreover, Mike Beheshti, the State engineer who actually drafted the July 1995 

Approval Order, likewise testified that the limits that he placed in the Order were hourly values, 

and that Phillips had a duty to comply with these limits on an hourly basis. 112 Thus, the State's 

110 See Undisputed Fact No. 25.
 

111 Exhibit 35, Deposition ofBill Reiss at 146.
 

112 Exhibit 16, Deposition ofMike Beheshti at 15.
 

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own testimony makes it clear that the emissions limits for the SRU, as expressed in the October 

1992 Approval Order that the State drafted and submitted to EPA, was an hourly limit. 1l3 

In addition to the testimony ofits own witnesses, the State's treatment of one ofthe other 

refineries, Chevron U.S.A., further demonstrates its realization that the limits set forth for the 

Phillips SRU were hourly maximums. On August 11, 1995, the State issued an Approval Order 

to Chevron establishing an emission limitation for the Chevron Sulfur Plant Incinerator of 177.3 

Ib/hr. 114 On March 21, 1996, the State issued a revised order to Chevron, which changed the 

limits for the incinerator to 2.128 tons/day. In the Abstract accompanying the revised Order, the 

State noted that the revised order "reflects changes to the sulfur dioxide emission limitation from 

the Sulfur Removal Unit. The previous limitation was stated in pounds per hour. This limitation 

is being changed to pounds per day ...."115 The State's decision to issue a revised Order to 

Chevron clearly reflects its understanding that the August 1995 Approval Order imposed an 

hourly limit on the Chevron SRU. The nomenclature that the State used in the August 1995 

Approval Order is precisely the same as that used in the Phillips Orders, i.e., "lbs./hr." Just as the 

113 By virtue oftheir designation as Rule 30(b)(6) witnesses, the testimony ofMr. Reiss 

and Mr. Beheshti represent the testimony ofthe State ofUtah. Even ifMr. Beheshti had not been 

designated pursuant to Rule 30(b)(6), his testimony would be particularly compelling, inasmuch as 

it was he who drafted the terms ofthe 1995 Approval Order. 

Additional support for the proposition that the State knew this was an hourly limit may be 

found in the notes taken ofa meeting between EPA and the State on October 7, 1996. During 

this meeting, the State claimed that the alleged violations were all the result of unavoidable 

malfunctions, and not that the applicable limit was a daily one. See, Undisputed Fact No. 17. 

114 See, Exhibit 40 (Chevron Approval Orders) 

115 Id. at March 21, 1996 Approval Order, pp 3 and 7. Indeed, the State took a similar 

action on behalf ofPhillips, changing the lbs./hr. limit to one expressed in terms oftons/day. The 

State termed this change a "correction." See Exhibit 32. 

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State itself recognized that Chevron was subject to an hourly limit, this Court should reach the 

same conclusion for Phillips. 116 

5.	 Phillips ItselfRecognized That the Approval Orders Established Hourly Limits 

It is clear that, at least from 1995 until EPA notified Phillips ofits intent to bring this 

enforcement action, Phillips' employees behaved as though they believed that the SRU was 

subject to an hourly limit. This is made clear from the instructions that were given to the SRU 

operators, the reports that Phillips filed with the State concerning its compliance status, the 

reports that Phillips filed whenever it experienced excess emissions to the atmosphere and, finally, 

from the internal e-mails produced in discovery. Although Phillips now argues that the hourly 

limits in its permit were for reporting purposes only (and not compliance), this position is at odds 

with the way in which the Company behaved during the relevant time frames. 117 This behavior 

suggests very strongly that the company itself knew that it was subject to an hourly limitation 

under the October 1992 and July 1995 Approval Orders. 118 

116 In citing the March 1996 Approval Order for Chevron, the United States does not 

concede that such order was effective to amend the SIP limits for Chevron. The March 1996 

Chevron Approval Order was never submitted to EPA as a SIP revision. Accordingly, for the 

same reasons specified in our Response to Phillips Motion for Partial Summary Judgment the 

State's Order does not amend the Utah SIP. The validity ofthe Chevron Order, however, is not 

at issue in this litigation. 

117	 See Exhibit 9, Deposition ofDr. Frankie Wood Black at 637. 

118 David Prey, a former employee ofthe State and affiant on behalf ofPhillips, succinctly 

summed up just how obvious it is that Phillips was subject to an hourly limit: 

Q. You just testified to the effect that you know that Phillips knows 

it has an hourly limit. I wonder how you knew that? 

A.	 They just read their approval language, I imagine. It's all they 

would have to do to know that. 

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Dr. Frankie Wood-Black was an environmental specialist at the Woods Cross Refinery 

from October 1994 through at least May 1998. As part of her job, Dr. Wood-Black handled 

Clean Air Act permitting for the facility as well as emissions reporting to the State. It was also 

her responsibility to advise operating personnel at the plant at to what legal requirements they had 

to meet. 119 In informing plant operators ofthe legal requirements applicable to the SRU, Dr. 

Wood-Black stressed that the unit needed to operate so as to meet an hourly limit. 120 Indeed, to 

Exhibit 41, Deposition ofDavid J. Prey. 

119 See Exhibit 9 (excerpts from deposition ofFrankie Wood-Black) at 607 (employment 

dates), 595-97 (duties). 

120 See Exhibit 6 (deposition of Conrad Jenson). Mr. Jenson, testifying as a Rule 30(b)(6) 

witness for Phillips, made it clear that he understood that the SRU was subject to an hourly, not a 

daily, limit: 

A. [W]e tried to operate under some kind of hourly basis.... We were told, you 

know, that we needed to stay below what was equivalent to 114 pounds an hour of 

emissions.... 

Q. Who told you that? 

A. The environmental, [sic] so Frankie Wood-Black told me that.
 

Id. at 406.
 

Q. But is it accurate to say that you were trying to keep the emissions below the 

114 pound per hour rate all the time? 

A. Yes.
 

Id. at 408.
 

Q. So in operating it you were not relying on a 24-hour average, were you? 

A. In operating the unit, no.
 

Id. at 409.
 

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assist the operators to meet this limit, Phillips installed alarms that would sound whenever the 

Continuous Emission Monitor (CEM) indicated that the unit was exceeding a 114 lb/hr emission 

rate. 121 

Moreover, as part of her duties, Dr. Wood-Black filed quarterly reports with the State that 

listed each and every hour in which emissions from the SRU exceeded the hourly limit set forth in 

the Phillips Approval Orders. Attached to this Motion is a copy ofthe quarterly report that 

Phillips filed for the Fourth Quarter of 1994.122 This report makes it clear that Phillips understood 

that what it was reporting was whether or not the SRU was in compliance with applicable 

emissions limitations. In certifYing the correctness ofthe information being reported, Phillips 

acknowledged two critical points: that the data used to show compliance was obtained in 

accordance with approved methods; and that during the reporting period "compliance with the 

standard has not been achieved."123 The "standard" in this case is the S02 limitation, which is 

121 Mr. Jenson testified: 

Q. Where is that alarm set now? What level? 

A. The alarm is set on the six minute average reading of S02 in pounds per hour 

at roughly 114 pounds per hour. 

Id. at 509-510. 

122 In the interests of brevity, the United States is attaching only one ofthe quarterly 

reports. The attached report is representative, in terms ofthe data reported and format, ofthe 

other quarterly reports that the Company filed with the State. 

123 Exhibit 42 at p.l (following cover letter). There are actually two certifications, one for 

the Tail Gas Incinerator (at the SRU) and one for the Amine Plant. The certification for the tail 

gas incinerator appears at the page denoted as CEM501618. 

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listed on page 3 ofthe report as 95.29 Ibs./hr. 124 This is the same figure set forth at Condition 

5.E ofthe October 1992 Approval Order. The body ofthe report then sets forth tables listing 

each and every hour for the calendar quarter. For most ofthe hours ofthe quarter, Phillips 

reports no data, indicating that the SRU was operating in compliance with its limits. Scattered 

throughout the tables, however are entries that set forth numerical limits, all of which are above 

the 95.29 lbs./hr. limit set forth in the October 1992 Approval Order. 125 

Interestingly, there is nothing on the face of the reports or the cover letters actually 

provided to the State that supports Phillips' assertions that the hourly limit in its permit was only 

for "reporting purposes." Rather, the reports clearly and unequivocally detail "exceedances" of 

applicable requirements. The tables on which Phillips lists its emissions data are titled "Gas 

Exceedance Evaluation".126 These tables contain blanks, one for each hour ofthe day, that 

Phillips filled in whenever it exceeded the hourly limit set forth in its Approval Order. 127 Then at 

124 Id. at 3. CEM501624. 

125 See, e.g., id. at CEM501679-80. 

126 Id. at CEM501673. 

127 IfPhillips really believed that it was only subject to a daily or 24-hour averaged 

emissions limit, then it logically would have filled in the blanks for each and every hour of the day, 

so that an averaged number could be reported. Such entries would have been absolutely essential 

on those days when Phillips experienced one or more exceedances ofthe hourly values in its 

Approval Order. Absent data entries showing levels below the hourly values in the Approval 

Order, it would be mathematically impossible for Phillips to demonstrate compliance with a daily 

limit for any ofthose days. Two excellent illustrations ofthis point appear on the entries for 

October 13 and 14, 1994. On those dates, Phillips experienced a number of hours in which it 

exceeded its permit limit of95.29Ibs/hr, in some cases by more than 100%. Id. at CEM501679­

80. While it would certainly be possible that, averaged over 24 hours, the emissions would have 

been less than 95.29 pounds per hour, Phillips.provides the state with no data from which to make 

this calculation. The same would be true for dates on which Phillips had only a couple of 

exceedances, such as October 4, 1994. Id. at CEM501674-75. Again, however, there is no data 

-16­
the end ofthe Report, Phillips tabulates the total number of hours in the quarter in which 

exceeded its permitted limits, and percentage oftime ofthose exceedances. For example, in the 

4th Quarter 1994 Report, Phillips reports that it exceeded the standards during 58 hours of 

operation, or 1.88% ofthe time in that quarter. 128 

Not only did Phillips report each and every hour in which it exceeded its permit limits, but 

it also specified a "reason code" for each ofthose hourly exceedances, and then explained why it 

believed a particular reason code applied. It simply makes no sense that Phillips would have 

taken the time and spent the resources that it did justifying particular exceedances that, in its view, 

were not even violations of its permit. 129 

The State evidently believed that Phillips was reporting violations of hourly limits when it 

reviewed and commented on the reports. Marv Maxell, Manager ofthe Air Standards Branch for 

provided from which one can determine whether, on a 24-hour basis, Phillips was in or out of 

compliance on that date. This leads inescapably to the conclusion that Phillips believed that the 

values being reported were violations of an hourly standard. 

128 Id. at CEM501624. Even when Phillips sent these data to EPA, pursuant to a §114 

Information request, it said nothing to the effect that compliance should be averaged over a 24­

hour period. See Undisputed Fact No. 14. 

129 Another indication that Dr. Wood-Black viewed the Quarterly Reports as constituting 

evidence of violations of an hourly limit is found in her correspondence ofMarch 30, 1995 to 

Norm Erickson ofthe State. See, Exhibit 43. In that memorandum, Dr. Wood-Black makes 

several corrections to the Quarterly Report for the 4th Quarter of 1994. As a result ofher 

corrections, Dr. Wood-Black confirms that the number of"exceedances" was reduced from 56 to 

37 hours, or 1.876% "exceedances for the quarter." Moreover, Dr. Wood-Black notes that the 

applicable permit limit will be changing to 114.42Ib/hr. She then notes that "[u]sing the 114.42 

lb/hr limit an additional 19 hours are below the this [sic] or 18 hours ofexceedances or 0.913% 

exceedances for the quarter. The import ofthis correspondence is clear. Dr. Wood-Black is 

attempting to put the best possible light on Phillips' quarterly emissions summary. Such efforts 

would have been completely unnecessary had Phillips actually believed that it was not subject to 

hourly, but only daily limits. 

-17­
the State's Division ofAir Quality, wrote to Phillips to conunent on the company's Quarterly 

Reports. In those letters, and in the attached sununary sheets, Mr. Maxell apparently adopts 

Phillips' own representations concerning the number ofhours and the percentage oftime that it 

had exceeded the standards. no Once again, there is nothing on the face ofthese letters that 

suggests that the state viewed these data as indicative of anything other than violations of an 

hourly pennit limit. 

Shortly after receiving the State's letters, Dr. Wood-Black began sending e-mails to 

selected Phillips employees at the refinery. In those e-mails, Dr. Wood-Black consistently calls 

attention to the number of "hours of exceedances" that Phillips had experienced during the 

reporting period. In virtually every e-mail, Dr. Wood-Black opines on the number ofexceedances 

she believes were the result of malfunctions and "which are not counted against us [Phillips]."l3l 

Nowhere in these e-mails; however, does Dr. Wood-Black make any attempt to compute the 

130 See, Exhibit 44 (Letters from Marv Maxell to Phillips dated May 1 and May 12, 1995. 

The May 1 letter conunents on Phillips' Report for the 4th Quarter of 1994. The May 12 letter 

conunents on the Quarterly Report submitted for the 1

5t Quarter of 1995. In both comment 

letters, the State adopts Phillips' representations concerning the number of hours in which it 

violated its pennit limit and the percentage of operating time this represented. Both letters are 

utterly silent on the issue of how many "exceedances" Phillips would have committed had its 

emissions been averaged over a 24-hour period. 

131 In an e-mail typical of all ofthe others that she sent, Dr. Wood-Black states: 

For the quarter through 6/26 - There have been 66 hours of exceedances ofwhich 

at LEAST 22 were due to process malfunctions and start ups which are not 

counted against us....Therefore worst case to date is 44 hours of exceedances. 

(i.e. 2.080% exceedances for hours of operation this quarter.) 

See e-mail of6/27/95 (attached as part ofExhibit 45. A representative selection ofDr. WoodBlack's e-mails, all ofwhich were marked as deposition exhibits to her deposition, are set forth as 

part of a composite exhibit.) 

-18­
number of instances in which Phillips was in violation of a daily emissions limit. Once again, this 

silence is damning to any argument that Phillips itself believed that it was subject only to a 24­

hour average limitation. It is clear from these contemporaneous messages that Dr. Wood-Black 

believed that Phillips was subject to an hourly limitation at its SRU. The wording ofthese 

messages (with their focus on the number of hours ofexceedances) also belie Dr. Wood-Black's 

testimony that she believed that Phillips was only required to report on an hourly basis, rather than 

actually comply. 

Finally, for purposes offiling Excess Emissions Reports under EPCRA132 Phillips assumed 

that it was subject to an hourly emissions limit. In an internal memorandum dated December 14, 

1995, Dr. Wood-Black set forth the procedures that the refinery operators were to follow when 

reporting the discharge of excess emissions into the atmosphere. Dr. Wood-Black's 

memorandum states as follows: 

Until recently, the Woods Cross facility only had a ton per year limitation on the 

amount of S02 that could be released into the atmosphere, thus making [it] 

virtually impossible to know if a reportable quantity of S02 had been released. 

Now as the permit limits have been tighten[ed] and we have a lb/hour limitation 

on the SRU stack .... 133 

Later in that same document, Dr. Wood-Black states "[o]ur S02 permit limit on the SRU is 

114.42 pounds per hour.,,134 Phillips employees evidently followed the guidelines set forth in Dr. 

132 EPCRA is the Emergency Planning and Community Right to Know Act, 42 U.S.C. 

§§1100l et seq. 

133 Exhibit 12 at p. 3. Although Dr. Wood-Black states that, prior to the issuance ofthe 

July 1995 Approval Order, Phillips had only a tons per year limitation, this statement is at odds 

with the way that Phillips reported its excess emissions to the State. 

134 Id. 

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Wood-Black's instructions. Even though written reports were typically sent to the State several 

days after the initial release of excess S02, no attempt to qualify those emissions was ever 

made. 135 This last point is telling. In her deposition, Dr. Wood-Black testified that she 

understood that Phillips only had a duty to report emissions that exceeded the pennitted levels. 136 

Even when Phillips sent summaries of its Excess Emissions Reports to EPA in 1996, it made no 

attempt to qualify any of these reports. 137 

6. What the State May Have "Intended" is Irrelevant to This Phase ofthe
 

Proceedings
 

In an attempt to avoid the clear wording ofthe October 1992 and July 1995 Approval 

Orders, Phillips and the State now contend that what the State really "intended" to do all along 

was to establish a 24:..hour averaging time for the SRU's emissions. In support ofthis argument, 

135 A sampling ofthe Excess Emissions Reports filed by Phillips is attached as Exhibit 46. 

The Report filed on November 20, 1995 is illustrative. In that Report, Dr. Wood Black confirms 

that Phillips had emitted excess emissions two days earlier -- on November 18. The total excess 

S02 was 74.03 pounds for the day. Attached to this letter, Dr. Wood-Black attaches a copy of 

the CEM data for November 18. As reported by the CEM, for the day Phillips' emissions 

averaged 90.519 pounds per hour - well under the permitted limit. Yet Dr. Wood-Black's letter 

says nothing to the effect that, in actuality, there had been NO excess emissions that day, because 

the average emissions were below the permitted level. See also, Report ofNovember 27 

(confinning releases on November 23). Again, the daily average is less than the permitted level 

for that day. 

136 See, Exhibit 9, Deposition ofDr. Frankie Wood-Black at 611-19. 

137 On February 20, 1996, Dr. Wood-Black also provided EPA with a summary of 

Phillips' excess emissions episodes. See, Exhibit 47. Once again, Dr. Wood-Black indicates that 

the current limit is 114.42 pounds/hr. Id. at CEM306821. Significantly, Dr. Wood-Black again 

makes no effort to compute the number oftimes that Phillips exceeded its permit assuming 24 

hour averaging. Yet this would have been simple to do. For example, on August 3, 1995, 

Phillips reported two hours in which it exceeded the 114.42 lb/hr limit. Id at CEM306824. The 

total emissions of S02 for this date were 1,788.2 pounds, or an average of74.5 lb/hr, employing a 

24 hour averaging time. 

-20­
Phillips (and the State) have argued that, because the Chemical Mass Balance ("CMB") modeling 

that was done to support the State's attainment demonstration was done on a daily, rather than 

hourly basis, emissions from sources such as the Phillips SRU should also be regulated on a 24­

hour basis. Phillips (and the State) also point out that the SIP and the October 1992 Approval 

Order established daily and annual (and not hourly) limits for the refinery as a whole. From this, 

Phillips (and the State) seem to conclude that because the State could have established daily limits 

for the SRU, it necessarily must have intended to do so and, therefore the Approval Orders should 

be construed in this manner. 

It is the position of the United States that the testimony and correspondence from various 

State officials adduced by Phillips are nothing more than post hoc rationalizations that are entitled 

to no deference. But the Court need not even reach the issue ofwhether the State really 

"intended" to impose 24-hour averaging when it submitted its proposed SIP because the State's 

intent is irrelevant to this phase of the proceedings. 138 As demonstrated by the testimony of its 

own witnesses, what the State actually submitted to EPA for approval was a never-to-beexceeded hourly limitation. EPA based its decision to approve the proposed SIP in reliance on 

the plain language of what was submitted. It is simply not EPA's task in reviewing a proposed 

SIP to divine what the State was actually "intending" to do. EPA is entitled to rely on the clear 

wording ofthe proposed SIP in making its decision whether the plan is approvable or not. In this 

138 The only possible place in which the question of the State's intent might be relevant 

would be at the penalty phase of the proceedings. Were the Court to conclude that there was 

general confusion about the standard, and that Phillips in good faith believed that it was subject to 

a daily rather than an hourly emissions limit, then the Court could consider this in setting a civil 

penalty. See, 42 US.c. §7413(e)(penalty assessment criteria). 

-21­
case, what the State proposed was an hourly limit, and this is the limit that EPA approved and is 

authorized to enforce. 139 

7. No Unfairness to Phillips Results From the Enforcement of an Hourly Limit 

Phillips claims that it is "caught in a regulatory crossfire" between the State and EPA 

concerning the proper interpretation ofthe SIP. Nothing could be farther from the truth. As we 

have demonstrated above, it was Phillips itselfthat proposed the emissions limits that EPA is 

attempting to enforce. Phillips is a sophisticated company, with operations in numerous states 

and access to qualified legal counsel. It could have proposed 24-hour averaging when it was 

reviewing drafts ofwhat would become the SIP that was ultimately adopted by Utah and 

approved by EPA. EPA obviously believed that 24-hour averaging could be justified in 

appropriate circumstances, as evidenced by its approval ofthe SIP provisions for Kennecott, 

Geneva Steel, and other sources. Moreover, the record shows that Phillips proposed at least 

three different sets of emissions limitations to the State for inclusion in Approval Orders. Had 

Phillips requested 24-hour averaging in either its July 1992 or October 1992 proposals to the 

State, those limits could have been presented to EPA and, perhaps, adopted as the federal SIP 

limits. But Phillips did not make such a proposal. Phillips had a third opportunity to propose 24­

hour averaging in July 1995 when once again it proposed the emissions limits that the State set 

139 Perhaps ifthe emissions limit for the Phillips SRU were the only one in the entire SIP 

expressed on an hourly basis, the company's argument might be more plausible. When one 

examines the SIP document proposed by the State, however, it is apparent that the State chose to 

regulate the majority ofits stationary sources by establishing hourly emissions limitations. See 

Undisputed Fact No.9. 

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forth in the July 1995 Approval Order. Phillips should be required to live with the limits that it 

itself requested the State to impose. 14o 

8. Sound Public Policy Requires that EPA Be Able to Enforce the SIP As Written 

Essentially, Phillips and the State ask that this Court allow the State to amend the SIP 

through administrative fiat rather than the process specified in Section 11O(c). As we previously 

argued in our Response to Phillips' Second Motion for Partial Summary Judgment, Section 110(i) 

of the Act prohibits such informal modifications. Aside from the fact that it is inconsistent with 

the provisions ofthe Act itself, Phillips' suggestion amounts to bad public policy. IfEPA cannot 

enforce the plain language ofthe SIP that it has approved, then the entire structure ofthe Clean 

Air Act is undermined. Sources could simply approach State regulators for relief from 

requirements that they considered too onerous. Sympathetic State regulators could then simply 

amend the original SIP requirements under the guise that the original requirement was not what 

the State actually intended. That States would be encouraged to behave in such a manner is not 

fanciful. As the Court of Appeals for the Sixth Circuit stated: 

As Congress has recognized, if state control of ambient air emissions were final, in 

short order, major shifts ofsmoke stack industries to states with the most lenient 

pur air standards would inevitably take place. Absent final authority in the United 

States EPA, the attainment ofgoals ofthe Clean Air Act would prove 

ephemeral. 141 

140 Moreover, EPA stated clearly in its July 1994 Approval ofthe Utah SIP that, were the 

State to revise permit standards that EPA, as a matter of federal law, would enforce the more 

stringent ofthe two. See, Undisputed Fact No. 11. 

141 United States v. Ford Motor Co., 814 F.2d 1099, 1102 (6th Cir.), cert. denied, 484 

U.S. 822 (1987). Accord, Duquesne Light Co. v. U.S. EPA, 698 F.2d 456,471 (D.C. Cir. 1983). 

-23­
In conclusion, the State proposed an hourly emissions limitation, a fact that even the State 

regulators now acknowledge. EPA approved this hourly limitation as part of the SIP, making it a 

matter offederal law. EPA must be allowed to enforce the limits that were actually proposed and 

approved. For this reason, the United States is entitled to summary judgment on the first 

bifurcated issue. 

B. Phillips Is Required To Achieve 95% Efficiency At Its SRU On A Daily Basis 

The United States also seeks summary judgement that, beginning on July 17, 1995, 

Phillips had a duty to operate its SRU so that, on a daily basis, the unit removed at least 95% of 

the sulfur in the gas streams fed to it. The requirement that Phillips achieve 95% efficiency at the 

SRU has been in place since EPA approved the Utah SIP on July 8, 1994. 142 The duty to comply 

with this 95% requirement on a daily basis was not made explicit until the State issued its 

Approval Order to Phillips in July 1995. The United States is entitled to summary judgment on 

this issue because the 1995 Approval Order is clear on its face that the 95% efficiency 

requirement is a daily one. Moreover, the testimony ofthe State's own witnesses, including the 

author ofthe 1995 Approval Order, reveal that it was always their understanding that the duty to 

comply was a daily one. 

1. The July 1995 Approval Order is Clear on its Face. 

When interpreting a regulatory provision, the Court should start with the wording ofthe 

provision itself Ifthese provisions are unambiguous, then the Court should give effect to their 

142 Exhibit 5, at App. A § 2.1.M.A. entitled "Petroleum Refineries" provides that "[a]ll 

petroleum refineries in or affecting the PMlO nonattainment area shall for the purpose ofthis PMlO, 

SIP 1) require sulfur units/plants (SRU) that are at least 95% effective in removing sulfur from the 

streams fed to the unit." 

-24­
ordinary meaning. FDIC v. Canfield, 967 F. 2d 443 (lOth Cir. 1992) (construing statute). The 

relevant provisions ofthe July 1995 Approval Oder clearly require that Phillips meet the 95% 

efficiency requirement on a daily basis. Condition 5 provides: 

To comply with the requirements ofthe PMlO SIP, Phillips 66 Company in Woods 

Cross, Utah shall do the following: 

Require sulfur removal units/plants (SRU) that are at least 95% effective in 

removing sulfur from the streams fed to the unit.... 

c. Indicators 

2. Appropriate adjustments to SRU operation parameters shall be made to ensure 

95% efficiency on a daily basis.... 143 

While the rest ofCondition 5 specifies how and when the SRU is to be tested, and what 

Phillips must do if SRU efficiency drops below 95%, there is nothing in the rest of this Condition 

that negates or qualifies the duty ofthe Company to make appropriate adjustments to the SRU to 

ensure 95%+ efficiency on a daily basis. Moreover, the concept of a "daily basis" is susceptible to 

only one meaning, namely that Phillips comply with the efficiency requirement on each and every 

day that it operates the unit. Any other interpretation effectively reads out this unambiguous 

requirement. 

Another indication that the State intended that Phillips achieve 95% every day is found in 

Condition 5.E, which sets forth the conditions upon which Phillips has the option to increase the 

allowable emissions from the "emissions cap" sources if it can demonstrate that its SRU actually 

operates at better than 95% efficiency. In order to take advantage ofthis option, Phillips would 

have to provide at least one year of data. For an emissions trade-off request to be approved, 

143 See, Exhibit 15 (July 1995 Approval Order) at Condition 5 (at pp. 4-5). 

Emphases in original. 

-25­
"[t]he (SRU) 24 hour minimum operating efficiency shall have been demonstrated to be no less 

than 95%."144 This provision is also clear. The State is allowing Phillips the option of increasing 

emissions at other points at the refinery provided that it can demonstrate that the SRU's daily (or 

24-hour) minimum efficiency is at least 95%. Once again, there is no way to interpret this 

provision as requiring anything other than daily compliance with the standard. 

2. The State's Witnesses and a Key Phillips Employee Have Testified That 95% 

Efficiency Must be Maintained On a Daily Basis. 

In addition to the language ofthe Approval Order itself, three ofthe State's own 

witnesses, designated pursuant to Fed. R. Civ. P. 30(b)(6), have testified that they understood 

that the July 1995 Approval Order required compliance on a daily basis. Mr. Beheshti, the State 

Permitting Engineer responsible for the preparation ofthe July 1995 Approval Order, testified as 

follows: 

Q: Is it your understanding that Phillips is obligated to meet at least 95-percent 

efficiency every day? 

A: That's what the first sentence [referring to Condition 5.C.2] says. 

Q: Ifyou look at the whole paragraph, does that change your opinion? 

A: It doesn't look like it. 

Q: So you would still say that they are required to meet the efficiency requirement 

every day? 

A: Yes. 14S 

144 Id. at p. 6 (emphasis added). 

14S See Exhibit 16 (Deposition ofMike Beheshti) at 29-30. See also, Exhibit 35 

(Deposition ofWilliam Reiss) at 16 and 164. 

-26­
Similarly, Mr. Montie Keller, also testifying pursuant to Fed. R. Civ. P. 30(b)(6), 

recognized that the duty to achieve 95% efficiency was a daily requirement: 

Q: Is it your understanding that the language her [referring to Condition 5.C. of 

the 1995 Approval Order] requires that Phillips be in compliance with the 95­

percent efficiency requirement every day? 

A: I think that was our intent, yes, that if it were operating correctly, ifthe SRU 

were not operating at significantly lower than normal capacity, that it ought to 

operate - - that's why we put a plus - - it ought to operate probably better than 95, 

but a least 95, and that it should do so on a consistent basis. We didn't think it 

was realistic to have them verify the 95 every hour or every day, but as an 

operational kind of think I think we expected that if it was operating properly it 

would be in the 95 plus range, and we would expect them to operate it so that it 

would be that way. Not every hour, because we know operational conditions 

change. But on a 24-hour basis, ifthey watched it closely enough, they could 

probably have time with either tweaking up the SRU oftweaking up the process to 

keep, you, know generally in that range, so, yeah. 146 

Finally, Walter Kramer, one ofPhillips' employees (now a former employee) charged with 

negotiating what became the 1995 Approval Order, stated that was his understanding that the 

Order required the Company to achieve 95% efficiency on daily basis: 

Q: In negotiating this language with the state, was there any discussion about 

whether Phillips had to meet the 95-percent efficiency requirement on a continuous 

basis? 

A: I believe the intent was to meet the 95-percent on a daily basis. The 95-percent 

efficiency that is. 

Q: Is that something that you discussed with the state? 

A: Yes, sir. 

Q: And that would have been Bill Reiss and Montie Keller? 

146 See Exhibit 36 (Deposition ofMontie Keller) at 344-45. 

-27­
A: Yes, sir. 147 

Thus, the person who negotiated what became the 1995 Approval Order for Phillips, as 

well as the State employees with whom he negotiated these provisions, had a common 

understanding that Phillips was to meet the 95% efficiency requirement each and every day. This 

testimony, coupled with the clear wording ofthe Approval Order itself, provides ample basis upon 

which this Court can award the United States summary judgment on this issue. 

C. UTAH'S JUDGMENTS REGARDING THE AVOIDABll,lTY OF BREAKDOWNS 

ARE NOT BINDING ON EPA FOR PURPOSES OF FEDERAL ENFORCEMENT 

It is necessary to address this issue in two parts, first with regard to breakdowns which 

cause excess emissions, and second with regard to breakdowns ofthe CEM. This is because the 

first is the subject of a SIP provision, while the latter is not. Both aspects will be significant for 

determining the number ofviolations which Phillips has committed. 

1. The Utah Excess Emissions Breakdown Rule Does Not Prevent EPA from Exercising 

Independent Judgment about Which Breakdowns Are Avoidable 

Utah Rule 4.7 provides that, "emissions resulting from an unavoidable breakdown will not 

be deemed a violation ofthese regulations.... Breakdowns that are caused entirely or in part by 

poor maintenance, careless operation, or any other preventable upset condition or preventable 

equipment breakdown shall not be considered unavoidable breakdown [sic]. ,,148 Nothing in Rule 

4.7 provides that making judgments about the avoidability of breakdowns is the sole province of 

the State. 

147 See, Exhibit~7.(Deposition ofWalter !<ramer) at 133. See also, id. at 68 and 143. 

148 UACR R307-1-4.7 (1992). 

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Because Rule 4.7 is part ofthe SIP, it is federal law as well as State law. Numerous 

courts have held that deference is due to a federal agency which is interpreting or enforcing 

federal law. For example, "0nce approved, an SIP becomes part ofthe nationwide plan that 

either EPA or the states can enforce. In our judicial review we give great deference to the EPA's 

interpretation of the statutory scheme that Congress entrusted to it to administer. Such deference 

is justified because the EPA has developed special expertise in implementing and enforcing the 

Act. Thus, we may not substitute our own judgment for the EPA's, although we will disapprove 

EPA decisions that contradict the Act's plain meaning or intent." 149 Here the clear intent ofthe 

Act was for EPA to maintain an oversight function, to be sure that public health is protected even 

if States do not take appropriate actions to achieve that goal. Approval of a SIP is not the end of 

EPA's oversight. The Act requires EPA to play an active role in monitoring the State's 

implementation ofthe SIP to ensure that air quality is maintained. For example, Section 

110(k)(5) provides that the Administrator must call for a plan revision ifthe existing plan proves 

to be inadequate. 15o In addition, Section 11O(p) ofthe Act requires States to submit reports to 

149 American Cyanamid Co. v. US. EPA, 810 F.2d 493, 496 (5th Cir. 1987) (citations 

omitted). See, also, Argument above at 1-2, Bragdon v. Abbott. et aI., 524 US. 624, 625 (1998) 

(liThe views of agencies charged with implementing a statute are entitled to deference. "), 

American Lung Ass'n ofN.J. v. Kean, 670 F. Supp. 1285, 1291 (D.N.J. 1987) ("Although the 

EPA's interpretation ofNew Jersey' SIP does not control my decision, the agency's views are 

entitled to deference... I also repeat my earlier observation that New Jersey, as author ofthe SIP, 

should not be afforded deference in interpreting the document. "). 

150 42 US.C. §7410(k)(5). "Whenever the Administrator finds that the applicable 

implementation plan for any area is substantially inadequate to attain or maintain the relevant 

national ambient air quality standard, ... or to otherwise comply with any requirement ofthis 

chapter, the Administrator shall require the State to revise the plan as necessary to correct such 

inadequacies." 

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EPA to allow the Agency to assess the effectiveness ofthe SIP and make judgments about when 

action under Section 1l0(k)(5) is necessary.l5l 

A crucial example ofEPA's continuing oversight is that EPA is authorized to take a 

federal enforcement action when a State enforcement action is inadequate. United States v. SCM 

~, 615 F. Supp. 411, 419 (D. Md. 1985) ("In support ofits contention that the language of 

the Clean Air Act precludes the bringing ofthe instant action, defendant leaps from the premise 

that the Act contemplates state enforcement to the conclusion that the state enforcement bars any 

action by the EPA to enforce federally adopted standards. That conclusion finds no support in 

logic or the statute. Congress provided that the EPA may bring actions in the federal courts to 

enforce federally approved SIP's.... This enforcement scheme, and the significant penalties 

Congress intended to impose upon air polluters, would be nullified under defendant's view ofthe 

law.") Section 113(e)(1) ofthe Act/ 52 which was added in the 1990 amendments, contemplates 

federal enforcement enforcement if a State has already received a (presumably insufficient) penalty 

for the same violation, when it states that courts should take into account penalties previously 

paid, in assessing a penalty in a federal action. See United States v. Vista Paint Corp., 42 ERC 

2020, 1996 WL 477053, 15 (C.D. Calif. 1996) aff'd 129 F.3d 129 (9th Cir. 1997), cert. denied, 

119 St. Ct. 53 (1998) (in federal enforcement case for violations ofCalifornia SIP, defendant's 

payment ofa penalty for same violations to local air pollution agency was merely, a "slightly 

151 42 U.S.C. §7410(p). "Any State shall submit, according to such schedule as the 

Administrator may prescribe, such reports as the Administrator may require relating to emission 

reductions, vehicle miles traveled, congestion levels, and any other information the Administrator 

may deem necessary to assess the development effectiveness, need for revision, or implementation 

of any plan revision required under this chapter." 

152 42 U.S.C. §7413(e)(I). 

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mitigating factor" considered by federal court in assessing a penalty.)153 Thus, it would be 

inimical to the scheme ofthe Act for EPA to give up its right to determine what behavior by a 

polluter constitutes a violation. 

Phillips maintains that a State's finding of compliance binds EPA. This would mean that 

EPA somehow waived its statutory right to enforce based on factual judgment by State. What 

Phillips is essentially arguing is that silence constitutes an agreement to be bound. As the SCM 

and Vista Paint cases, supra, show, however, State and local enforcement actions cannot preclude 

federal enforcement. How absurd, then, that lack of enforcement by a State could have that 

effect. For all the reasons above, this Court should grant summary judgment to the United States 

on the point that the Utah excess emissions breakdowns are avoidable. 

2. Nothing Prevents EPA from Exercising Independent Judgment about Which CEM 

Breakdowns Are Avoidable 

The SIP and the Approval Orders require that Phillips "install, calibrate, maintain and 

operate a continuous S02 emissions monitoring system on the Sulfur Recovery Unit Incinerator 

stack. ,,154 That monitoring system is the sole means for measuring Phillips' SRU S02 emissions, 

and thus it is critical to determining whether Phillips violates its SRU emission limitations and its 

efficiency requirements. The United States is not aware of any provision in the SIP or any 

Approval Order which exempts unavoidable breakdowns ofthe CEM from being violations ofthe 

requirement to operate the monitoring system. 

153 Exhibit 48, the district court opinion, is supplied, pursuant to DUCiv. R. 7-2. 

154 See Exhibit 8 [10/92 Approval Order] at §16 and Exhibit 15 [95 Approval Order] at 

§20. 

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In its correspondence with EPA regarding this issue, Phillips relies heavily on the CEM 

malfunction provision ofthe federal regulations regarding SIPs. Paragraph 1.4 of40 C.F.R. Part 

51, Appendix P, states: "The State plan may provide a temporary exemption ... during any 

period of monitoring system malfunction, provided that,the source owner or operator shows, to 

the satisfaction of the State, that the malfunction was unavoidable and is being repaired as 

expeditiously as practicable." [Emphasis added.] However there is no evidence to suggest that 

Utah actually adopted this language into its SIP. The closest Utah came was in UACR 307-1­

4.6.3, which states that the "Minimum performance specifications for all continuous monitoring 

systems are those contained in ... 40 C.F.R., Part 51, Appendix P." That Appendix sets forth the 

minimum requirements for CEMs that each SIP must include. Clearly Utah did adopt the 

"minimum performance Specifications" portion ofAppendix P, which is in Sections 3.0 through 

3,9, But Paragraph 1.4 is not contained in that section of Appendix P and is optional, based on 

the "may provide" phrasing. Thus, the United States concludes that the language ofParagraph 

1.4 does not apply to this cause of action. 

Even ifUtah were implementing an exemption along the lines ofthat allowed by 

Paragraph 1.4, EPA would certainly have the authority to exercise independent judgment 

regarding the avoidability of CEM malfunctions, As with many other provisions of the Clean Air 

Act and its implementing regulations, the regulatory scheme is that States have the primary role in 

taking certain actions. The EPA role is to review that action by the State and to step in when 

necessary to protect public health or the integrity ofthe program. In this case, EPA believes that 

Utah's acceptance ofPhillips' assertions of unavoidability is incorrect and must be addressed. (See 

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argument in Section III.C.1, above, for additional discussion ofwhy Utah's judgments about 

avoidability should not bind EPA even if a SIP malfunction provision is found to be applicable.) 

"When a [SIP] is approved by the EPA, its requirements become federal law and are fully 

enforceable in federal court. ,,155 Here, as noted, the requirement is operate a CEM at the SRU is 

part ofthe SIP. Thus the federal government is entitled to decide what breakdowns of the CEM 

should be excused as unavoidable, if any. 

VI. CONCLUSION 

For the foregoing reasons the United States is entitled to summary judgment on each of 

the three bifurcated issues. 

155Unitek Environmental Services, Inc. and Unitek Solvent Services, Inc. v. Hawaiian 

Cement, 27 ELR 20483 (D. Haw. 1997). 

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DATED: December __, 1999 Respectfully submitted, 

LOIS J. SCHIFFER 

Assistant Attorney General 

Environment and Natural Resources Division 

U.S. Department ofJustice 

By:'Rd~ ~01lh«1
 ROBERT R. HOWAK 

Trial Attorney 

DAVID ROCHLIN 

Special DOJ Attorney 

Environmental Enforcement Section 

Environment and Natural Resources Division 

U. S. Department ofJustice
 

999 18th Street, Suite 900-N
 

Denver, Colorado 80202
 

(303) 312-7353 

PAULM. WARNER 

United States Attorney 

District of Utah 

ERIC OVERBY 

Assistant United States Attorney 

District ofUtah 

185 South State Street 

Suite 440 

Salt Lake City, Utah 84111 

(801) 325-3233 

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