THE UNITED STATES DISTRICT COURT 


FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 


CITIZENS FOR PENNSYLVANIA'S 

FUTURE, 

Plaintiff 

v. 4:11-CV-1360 

(JUDGE MARIANI) 

ULTRA RESOURCES, INC., 

Defendant 

MEMORANDUM OPINION 

I. INTRODUCTION AND PROCEDURAL HISTORY 

On July 21, 2011, Plaintiff, Citizens for Pennsylvania's Future ("PennFuture"), filed 

this citizen suit against Defendant, Ultra Resources, Inc. ("Ultra"), for alleged violations of 

the Clean Air Act ("CAA"), 42 U.S.C. §§ 7401 et seq., Pennsylvania's State Implementation 

Plan ("SIP"), and Pennsylvania's New Source Review regulations, 25 PA. CODE 127(E). 

(Compl., Doc. 1). PennFuture contended that Ultra built a major facility which produces 

nitrogen oxide ("NOx'") emissions without obtaining the appropriate nonattainment New 

Source Review ("NNSR") permit under the state regulations contained in 25 PA. CODE 

127(E). Ultra responded that it properly applied for and received less stringent permits (GP5s) from the Pennsylvania Department of Environmental Protection ("PADEpll). In issuing 

these GP-5s, PADEP decided to issue a permit to each of the eight compressor stations at 

issue as individual NOx emitting facilities instead of aggregating these facilities. If PADEP 

had aggregated the facilities, Ultra would have needed a major source permit. 

Case 4:11-cv-01360-RDM Document 80 Filed 02/23/15 Page 1 of 31
Ultra subsequently filed a motion to dismiss for lack of subject-matter jurisdiction 

(Doc. 9), arguing that the proper forum for PennFuture to challenge the issuance of the GP5 permits was before the Pennsylvania Environmental Hearing Board ("EHB"). This Court 

denied Ultra's motion on September 24, 2012, finding the plain language of Section 

304(a)(3) of the CM gave PennFuture the right to bring a cause of action directly to federal 

court thus giving the Court subject matter jurisdiction to hear the case and further 

determining that because Congress has clearly established a cause of action for citizen 

suits in Section 304 of the CM, it would be improper for the Court to abstain from 

exercising its jurisdiction. (Doc. 35). 

Following the completion of fact discovery, on February 28, 2014, Ultra filed a motion 

for summary judgment (Doc. 55). In support of its motion, Ultra contends that summary 

judgment is appropriate because "[Ultra] obtained all necessary air permit approvals for its 

compressor stations in Tioga and Potter Counties and did not construct a major source of 

NOx emissions." (Doc. 55, ~ 30). PennFuture opposes summary judgment, originally 

contending that "there are genuine issues of fact concerning whether Ultra's compressor 

stations are physically proximate and functionally interrelated."1 (Doc. 59, ~ 30). At the 

request of both parties (Docs. 63, 64), on April 21 ,2014, the Court held oral argument on 

Defendant's motion. As a result of the oral argument, PennFuture submitted a 

1 Plaintiff later abandoned this position in its Supplemental Statement Concerning Disputed Issues 

of Fact, stating that "[w]ith respect to the functional and operational interrelatedness of Ultra's sources . . . , 

it is PennFuture's position that the current record contains all of the facts material to a determination by this 

Court of whether Ultra's compressor stations are functionally and operationally interrelated." (Doc. 70, ,-r 6). 

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Supplemental Statement Concerning Disputed Issues of Fact (Doc. 70) on May 5,2014, to 

which Ultra promptly responded (Doc. 71). 

The motion for summary judgment has been fully briefed and is now ripe for review. 

For the reasons that follow, we will grant Defendant's motion for summary judgment. 

II. STATEMENT OF UNDISPUTED FACTS 

In accordance with Local Rule 56.1, Ultra has submitted a Statement of Material 

Facts as to which it submits there is no genuine issue for trial. (Doc. 55). PennFuture has 

submitted its response to Ultra's Statement of Material Facts (Doc. 59) with the result that 

20 of the 30 numbered paragraphs of Defendant's Statement of Material Facts have been 

admitted by the plaintiff, with many others admitted in part. Those which have been denied 

in whole or part raise no material issues of fact. 

Ultra operates 13 producing gas well pads in Potter and Tioga Counties in 

Pennsylvania (Doc. 55, 1f 11)2 as well as the following eight compressor stations in these 

counties (id. at 1f 1): (1) Ken Ton; (2) Kjelgaard; (3) Button; (4) Lick Run; (5) Pierson 810; (6) 

Pierson 801; (7) State 815; and (8) Thomas 808. Each of the compressor stations is 

located on awell pad location. (Id. at 1f 13). The compressors are set after the well pad 

locations are built and the wells are drilled, and the compressors are not involved in the well 

pad and piping planning. (Id.). Although Ultra's operations in Potter County and Tioga 

County cover over 500 square miles, the compressor stations, well pads, and pipelines are 

2 Although well pads were built at Hillside, Simonetti, Fowler and Martin, no wells were drilled. 

(Doc. 55, ~ 11). 

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within an area approximately six to seven miles across and three or four miles wide, or 

roughly 30 square miles. (Dep. of Daniel Sulfer, Doc. 57, Ex.3, at 23; Doc. 60 at 9; Doc. 62 

at 5-6). If lines were only drawn between Ultra's eight compressor stations, the total area 

within the lines would be less than five square miles. (Doc. 70,11 5; Doc. 71, at 1-2). 

While none of Ultra's compressor stations individually has the capacity to emit more 

than 100 tons per year (UTPY") of NOx, collectively the eight stations could potentially emit 

over 100 TPY of NOx. 

The Ken Ton compressor engine and ancillary equipment, located in Potter County, 

became operational on or about September 13, 2011 and the station is authorized under air 

permit approval GP5-53-11 0, issued on February 10, 2011, with a total facility potential to 

emit NOx of 13.88 TPY. (Doc. 55, 11 3). 

The Kjelgaard compressor engine and ancillary equipment, located in Tioga County, 

became operational on or about November 18, 2010, and were originally authorized under 

air permit approval GP5-59-193, issued on September 21,2009, with a total facility potential 

to emit NOx of 14.47 TPY and were later authorized under amended permit approval GP5­

59-193A, issued on September 28,2010, with atotal facility potential to emit NOx of 8.78 

TPY. (Id. at 11 4). 

The Sutton compressor engine and ancillary equipment, located in Potter County, 

became operational on or about October 3, 2010, and were originally authorized under air 

permit approval GP5-53-105, issued on November 13, 2009, with a total facility potential to 

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emit NOx of 21.81 TPY and were later authorized under amended permit approval GP5-53­

105A, issued on August 23,2010, with a total facility potential to emit NOx of 22.47 TPY. 

(Id. at~5). By amended permit approval GP5-53-105B, issued on February 10, 2011 , an 

additional engine and the same equipment were approved with a total facility potential to 

emit NOx of 41.89 TPY but because no further well drilling is planned, the second engine 

was never installed nor is there is any plan to install a second engine at this site. (Id.). 

The Lick Run compressor engine and ancillary equipment, located in Tioga County, 

became operational on or about September 5, 2010, and were originally authorized under 

air permit approval GP5-59-198, issued on November 13, 2009, with a total facility potential 

to emit NOx of 21.81 TPY and were later authorized under amended permit approval GP5­

59-198A, issued on August 25, 2010, with a total facility potential to emit NOx of 22.47 TPY. 

(Id. at ~ 6). 

The Pierson 810 compressor engine and ancillary equipment, located in Tioga 

County, became operational on or about May 16, 2011 and are authorized under air permit 

approval GP5-59-215, issued on January 11, 2011, with a total facility potential to emit NOx 

of 23.39 TPY. (Id. at ~ 7). 

The Pierson 801 compressor engine and ancillary equipment, located in Tioga 

County, became operational on or about April 5, 2010, and were originally authorized under 

air permit approval GP5-59-194, issued on September 21, 2009, with a total facility potential 

to emit NOx of 14.48 TPY. (/d. at ~ 8). By amended permit approval GP5-59-194A, issued 

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on December 27,2013, an identical replacement engine and different equipment were 

approved with a total facility potential to emit NOx of 14.9 TPY. (Id.). 

The State 815 compressor engine and ancillary equipment, located in Tioga County, 

became operational on or about March 2, 2011, and were originally authorized under air 

permit approval GP5-59-212, issued on November 8,2010, with a total facility potential to 

emit NOx of 22.48 TPY and were later authorized under amended permit approval GP5-59­

212A, issued on January 24, 2011, with a total facility potential to emit NOx of 7.09 TPY. 

(Doc. 55, ~ 9). 

The Thomas 808 compressor engine and ancillary equipment, located in Tioga 

County, which became operational on or about February 7,2011, are authorized under air 

permit approval GP5-59-214, issued on December 1, 2010, with a total facility potential to 

emit NOx of 22.48 TPY. (Id. at ~ 10). 

Once a well was operational and required compression, compressor stations to 

serve the wells were installed. (Id. at ~ 14). When each compressor station was initially 

installed, it compressed gas from wells on the location where it was installed and wells from 

other locations may also have supplied gas. If the compressor shut down or stopped 

working, the wells serviced by that compressor could not produce unless and until the wells 

built up enough pressure to produce without compression. Specifically, the Coon Hollow, 

Paul, Mitchell, and Button wells were serviced by the Button compressor; the Ken Ton wells 

were originally serviced by the Button Compressor Station but after the Ken Ton 

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Compressor Station was added, the Ken Ton wells were compressed at Ken Ton; the 

Pierson 801 wells were serviced by the Pierson 801 Compressor Station; the Thomas and 

Marshland Unit #1 wells were serviced by the Thomas Compressor Station; the Pierson 810 

wells were serviced by the Pierson 810 Compressor Station; the Bergey, Kjelgaard, 

Marshlands #3 (located on the Kjelgaard pad) and the Lick Run wells are serviced by the 

Lick Run Compressor Station; the Kjelgaard and Marshland Unit #3 wells are compressed 

by the Kjelgaard Compressor Station; and the State 815 wells are serviced by the State 815 

Compressor Station. (Doc. 55, ~ 15). 

Subsequently, because of excess capacity at certain compressor stations resulting 

from both decreasing well production and compressors that were originally sized to handle 

additional wells not drilled, Ultra decided that, while not necessary for production, 

efficiencies could be achieved by using the Kjelgaard compressor as a satellite to the Lick 

Run compressor, by using the Pierson 801 compressor as a satellite to the Thomas 

compressor, and by using the Ken Ton compressor as a satellite to the Button compressor. 

(Id. at ~ 16). Gas can only flow in one direction between each of these sets of compressors; 

specifically, gas only 'flows from the Kjelgaard compressor to the Lick Run compressor, from 

the Pierson 801 compressor to the Thomas compressor, and from the Ken Ton compressor 

to the Button compressor. Consequently, the Kjelgaard and Marshland #3 wells can be 

serviced by the Lick Run Compressor Station; the Pierson 801 wells can be serviced by the 

Thomas Compressor Station; and the Ken Ton wells can be serviced by the Button 

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Compressor Station. (Id. at ~ 17). The combined NOx potential to emit for each of the 

satellite compressor pairs is: Kjelgaard/Lick Run: 31.25 TPY (as perrnitted); Pierson 

801IThomas 808: 37.38 TPY (as permitted); Ken Ton/Button: 55.77 TPY (as permitted) and 

36.35 TPY (as built with one engine at Button). (Id. at ~ 24). 

It is undisputed that the gas from all of Ultra's wells in Potter and Tioga Counties is 

currently sent to a metering and regulation station connected to Dominion Transmission, 

Inc.'s ("Dominion") LN-50 transmission pipeline which adjusts the pressure and amount of 

gas that enters Dominion's LN-50 interstate natural gas pipeline and that a Tap Agreement 

between Dominion and Ultra governs this tap (Doc. 55, ~ 18; Doc. 59, ~ 18). However, 

Plaintiff disputes that this metering and regulation station is exclusively a station of 

Dominion Transmission, Inc., stating that "some of the equipment at the metering and 

regulation station is owned and operated by Ultra, some of the equipment is owned by Ultra 

and operated by Dominion, and some of the equipment is owned and operated by 

Dominion." (Doc. 59, ~ 18).3 Plaintiff also denies that this station does not emit air 

contaminants. 4 (Id.). 

While PennFuture contends that Ultra's compressor stations have not met the proper 

GP-5 standards at all times (Doc. 59, ,-r 2), it is undisputed that Ultra obtained GP-5 

approval from PADEP to install and operate each of its eight compressor engines and 

3 In Ultra's Reply brief, it states it "does not dispute that it operates a portion of the Metering and 

Regulation Station pursuant to the Tap Agreement with Dominion Transmission, Inc." (Doc. 62, at 8 n.4). 

4 PennFuture disputes that the metering and regulation station does not emit air contaminants due 

to this station's alleged release of methane (Doc. 59, ~ 18). However, it admits that the metering and 

regulation station does not emit NOx. (Doc. 60 at 16; Llnoff. Tr. at 59). 

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ancillary equipment. (Doc. 55, ~ 2; Doc. 59, ~ 2). It is further undisputed that PennFuture 

had actual and/or constructive notice of each GP-5 permit approval issued to Ultra by 

PADEP and never appealed any of these GP-5 permit approvals to the Pennsylvania 

Environmental Hearing Board. (Id. at 28,29). 

In Plaintiffs supplemental statement listing purported disputed issues of fact, Plaintiff 

states that the following distances exist between the stations (Doc. 70, ~ 4), to which Ultra 

has agreed to stipulate for the purposes of the present motion for summary judgment (Doc. 

71, at 1-2): 

1. 	 The linear distance between the Ken-Ton compressor station and the Pierson 801 

station is 1.50 miles; 

2. 	 The linear distance between the Pierson 801 station and the Kjelgaard station is 1.51 

miles; 

3. 	 The linear distance between the Kjelgaard station and the Lick Run station is .98 

mile; 

4. 	 The linear distance between the Lick Run station and the State 815 station is 1.21 

miles; 

5. 	 The linear distance between the State 815 station and the Pierson 810 station is 

1.69 miles; 

6. The linear distance between the Pierson 810 station and the Thomas 808 station is 

1.22 miles; 

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7. 	 The linear distance between the Thomas 808 station and the Button station is 1.37 

miles; 

8. 	 The linear distance between the Button station and the Ken Ton station is .86 mile. 

If lines were drawn between Ultra's eight compressor stations to delineate these 

linear distances, the total area within the lines would be less than five square miles. (Doc. 

70, ~ 5; Doc. 71, at 1-2). 

Plaintiffs Supplemental Statement Concerning Disputed Issues of Fact also includes 

a stipulation as to the precise locations of Ultra's compressors, in terms of latitude and 

longitude (Doc. 70, ~ 3), to which Ultra has also agreed to stipulate (Doc. 71, at 1-2). As a 

result of the parties' stipulation as to these coordinates, the Court notes that the following 

distances exist between the compressors: 

1. 	 The linear distance between the Ken-Ton compressor and the Thomas 808 


compressor is 1.23 miles; 


2. 	 The linear distance between the Pierson 801 compressor and the Button compressor 

is 1.97 miles; 

3. 	 The linear distance between the Thomas 808 compressor and the Pierson 801 

compressor is .78 mile; 

4. 	 The linear distance between the Pierson 810 compressor and the Kjelgaard 


compressor is .93 mile; 


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5. 	 The linear distance between the Thomas 808 compressor station and the Lick Run 

compressor is 3.09 miles; 

6. 	The linear distance between the Lick Run compressor and the Ken-Ton compressor 

is 3.96 miles; 

7. 	 The linear distance between the Lick Run compressor and the Button compressor is 

4.43 	miles. 

III. STANDARD OF REVIEW 

Through summary adjudication, the court may dispose of those claims that do not 

present a "genuine issue as to any material fact." FED. R. CIV. P. 56(a). Summary judgment 

"should be rendered if the pleadings, the discovery and disclosure materials on file, and any 

affidavits show that there is no genuine issue as to any material fact and that the movant is 

entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); Turner v. Schering-Plough 

Corp., 901 F.2d 335, 340 (3d Cir. 1990). "As to materiality, ... [o]nly disputes over facts 

that might affect the outcome of the suit under the governing law will properly preclude the 

entry of surnmary judgment." Anderson v. Liberly Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 

2505, 91 L.Ed.2d 202 (1986). 

The party moving for summary judgment bears the burden of showing the absence 

of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 

S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving 

party must offer specific facts contradicting those averred by the movant to establish a 

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genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 

3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary 

judgment simply on the basis of the pleadings, or on conclusory statements that a factual 

issue exists. Anderson, 477 U.S. at 248. Rather, the opposing party must point to a factual 

dispute requiring trial and the district court "may limit its review to the documents submitted 

for the purposes of summary judgment and those parts of the record specifically referenced 

therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030-1031 (9th Cir. 

2001); see also Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994). "Inferences should be 

drawn in the light most favorable to the non-moving party, and where the non-moving 

party's evidence contradicts the movant's, then the non-movant's must be taken as true." 

Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. 

denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993). 

IV. ANALYSIS 

A. Statutory background. 

While federal financial assistance and leadership are necessary for the development 

of programs to prevent and control air pollution, "air pollution prevention . . . and air pollution 

control at its source is the primary responsibility of States and local governments." 42 

U.S.C. § 7401(a)(3)-(4). Thus, consistent with the aims of the eM, each state must submit 

to the EPA for review and approval a state implementation plan ("SIP") "which provides for 

implementation, maintenance, and enforcement of ... standard[s] in each air quality control 

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region ... within such State." 42 U.S.C. § 7410(a)(1). A state agency must be designated 

to review applications for major source construction permits under Part D,5 and each SIP 

must use the "specific definitions" established in EPA regulations unless the state's 

definitions are "more stringent, or at least as stringent" as the federal definitions. 40 C.F.R. 

§ 51.165(a)(1). 

To comply with federal standards, Pennsylvania enacted the Air Pollution Control Act 

("APCA"), 35 P.S. § 4001 et seq. The APCA delegates authority to the Environmental 

Quality Board (UEQB") to develop rules and regulations to implement the provisions of the 

CAA,6 and PADEP evaluates applications and issues the appropriate air permits for 

constructions of new emission sources or for modifications to existing emissions sources.? 

Under Section 304 of the CAA: 

[A]ny person may commence a civil action on his own behalf - ... (3) against 

any person who proposes to construct or constructs any new or modified 

major emitting facility without a permit required under ... part Dof subchapter 

I of this chapter (relating to nonattainment)8 or who is alleged to have violated 

5 See 42 U.S.C. §§ 7410(a), 7502(b) & (c), 7503; 40 C.F.R. § 52.2020 (Pennsylvania's SIP). 


635 P.S. § 4005. 


7 35 P.S. §§ 4004, 4006.1. 


8 "The term 'nonattainment area' means, for any air pollutant, an area which is designated 


'nonattainment' with respect to that pollutant within the meaning of section 7407(d) of this title." 42 U.S.C. § 

7501 (2). Pennsylvania has been designated a nonattainment area and is therefore subject to the 

requirements of 42 U.S.C. §§ 7501-7515. Anyone seeking to construct and operate a major source in a 

nonattainment area in Pennsylvania must comply with the preconstruction permitting requirements under 

the NNSR program. See 35 P.S. § 4006.1 (a) ("No person shall construct, assemble, install or modify any 

stationary air contamination source, or install thereon any air pollution control equipment or device unless 

such person has applied to and received written plan approval from the department to do so."); 25 PA. 

CODE § 127.201 (a) ("A person may not cause or permit the construction or modification of an air 

contamination facility in a nonattainment area or having an impact on a nonattainment area unless the 

Department or an approved local air pollution control agency has determined that the requirements of this 

subchapter [Subchapter E] have been met."). 

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(if there is evidence that the alleged violation has been repeated) or to be in 

violation of any condition of such permit. 

42 U.S.C. § 7604(a)(3) ("Section 304"). Anyone proposing to construct a"major emitting" 

source of pollutants must obtain the proper permit before construction.9 The CM defines a 

"major emitting facility" as found in Section 304 as "any stationary facility10 or source of air 

pollutants which directly emits, or has the potential to emit, one hundred tons per year or 

more of any air pollutant." 42 U.S.C. § 76020).11 

Under the applicable state NNSR regulations, an NNSR permit is required for the 

construction of a new major facility that emits or has the potential to emit 100 tons per year 

or more of NOx. 25 PA. CODE § 127.201. In lieu of NNSR permits, PADEP may also issue 

less stringent general plan approvals and general permits,12 but only if the source is not 

subject to the NNSR requirements in Subchapter E. Id. Otherwise, an owner or operator 

must undergo the more onerous process of obtaining plan approval and receiving an 

operating permit on acase-by-case basis. Id. 

9 See 42 U.S.C. §§ 7475(a), 7502(c)(5); 40 C.F.R. § 51.165(a)(1). 

10 A "stationary source" "means any building, structure, facility, or installation which emits or may 

emit a regulated NSR pollutant." 40 C.F.R. § 52.21 (b)(5). Pennsylvania defines a"facility" as "[an] air 

contaminant source or acombination of air contaminant sources located on one or more contiguous or 

adjacent properties and which is owned or operated by the same person under common control." 25 PA. 

CODE § 121.1. 

11 See a/so 40 C.F.R. § 51.165(a)(1)(iv)(A)(2)(ii); PADEP Guidance for Performing Single 

Stationary Source Determinations for Oil and Gas Industries, Doc. No. 270-0810-006 (Oct. 6, 2012) 

(hereinafter "PADEP Guidance"). 

12 See 25 PA. CODE § 127.611. PADEP may issue a "general plan approval or ageneral permit for 

any category of stationary air contamination source if the department determines that the sources in such 

category are similar in nature and can be adequately regulated using standardized specifications and 

conditions." 35 P.S. § 4006.1 (n. 

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Among the general permits discussed above, PADEP developed GP-5, which 

authorizes the construction and operation of natural gas production facilities. Like other 

general permits, a GP-5 may not be used jf the construction or modification for which 

authorization is sought triggers NNSR requirements under Subchapter E.13 

Under Pennsylvania air permitting regulations, afacility is "an air contamination 

source or combination of air contamination sources14 located on one or more contiguous or 

adjacent properties ... which is owned or operated by the same person under common 

controL" See 25 PA. CODE § 121.1. An analysis of whether two or more air contamination 

sources are a "single source" should be undertaken on a case-by-case basis.15 If the 

emissions from multiple sources are aggregated as a single source and those emissions 

reach major source thresholds, they would be considered a "single source" subject to Part D 

permit requirements under the NNSR and thus ineligible for a GP-5. 

13 GP-5 is an abbreviated term for the "General Plan Approval and/or General Operating Permit 

(BAQ-GPA/GP-5), Natural Gas Compression and/or Processing Facilities" which, in relevant part, 

mandates that "authorization to construct, modify or operate cannot be issued to a [natural gas 

compression and/or processing] facility if the total emissions from all air contamination sources located at 

the facility including other sources determined by DEP to be a single source (for the purpose of New 

Source Review, Title Vor Prevention of Significant Deterioration) exceed a the [sic] major facility threshold 

during any consecutive 12-month rolling period. The emissions from all sources and associated air pollution 

control equipment located at a natural gas compression and/or processing facility shall not equal or exceed 

[100 tons of NOxl on a 12-month rolling sLIm basis." PADEP, Bureau of Air Quality, General Plan Approval 

and/or General Operating Permit Application Instructions, General Permit (BAQ-GPAlGP-5), Natural Gas 

Compression and/or Processing Facilities, ~~ 1-2, available at 

http://www.elibrary.dep.state.pa.us/dsweb/GetlDocument-1 05848/2700-PM-BAQ0205%20GP5%20Application%20Instructions.pdf. 

14 An "air contamination source" is defined as "any place, facility or equipment, stationary or mobile, 

at, from or by reason of which there is emitted into the outdoor atmosphere any air contaminant." 35 P.S. § 

4003. 

15 See PADEP Guidance, at 4. 

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Therefore, broadly at issue here is whether Ultra's eight compressor stations each 

constitute a separate facility or must be aggregated as a single facility for air permitting 

purposes. It is undisputed that the compressor stations are "under common control" (Doc. 

60, at 18; Doc. 78, at 2) and that, while none of the compressor stations individually has the 

capacity to emit NOx of 100 TPY or more, the stations collectively have the potential to emit 

over 100 TPY of NOx (see Doc. 55, ~~ 3-10). It is further undisputed that the lands are not 

contiguous. (Unoff. Tr. of Oral Arg. on Def.'s Mot. for Summ. J., April 24, 2014 (hereinafter 

"Unoff. Tr."), at 36). As a result, the only specific question is whether a genuine issue of 

material fact exists as to whether the air contamination sources are "adjacent", thereby 

rendering Ultra's facilities ineligible for GP-5 permits and requiring Ultra to meet heightened 

emission permitting requirements. 

B. The standard for determining "adjacent." 

In its Supplemental Statement Concerning Disputed Issues of Fact, PennFuture 

contends that three categories of facts are relevant to the Court's determination of whether 

Ultra's compressor stations, and any other sources of pollution emitted by Ultra's facilities, 

are "adjacent": (1) "the linear distances between Ultra's compressors ..."; (2) "the total area 

occupied by the compressors"; and (3) "the functional or operational interrelatedness of the 

compressors." (Doc. 70, ~ 1). Plaintiff therefore states that "the precise linear distance 

among Ultra's compressors and the physical area they occupy are disputed issues of fact 

absent a stipulation by the parties concerning those distances and that area." (Id. at ~ 2). 

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However, Plaintiffs Supplemental Statement then proceeds to list what it contends are the 

precise locations of Ultra's compressors, in terms of latitude and longitude, as well as the 

linear distance between the compressor stations, and the total area within which the 

compressor stations would be located, all of which Ultra has agreed to stipulate to for the 

purposes of the present motion. (Doc. 70, at mr 3-5; Doc. 71, at 1-2). Consequently, there 

is no triable issue with respect to the locations of the compressor stations or the distances 

separating them. 

In determining whether the properties at issue are "adjacent", Ultra relies on the 

dictionary definition of this term and urges this Court to strictly construe this language as 

only connoting a relationship close in time or space. (Doc. 58). In turn, PennFuture does 

not dispute the dictionary definition of "adjacent", but instead argues that "[w]hile the 

concept of adjacency is clearly rooted in physical proximity, it has no built-in ruler [and] 

necessarily depends on the purposes for which a distance is being measured, and the 

relationship between the things on either side of that distance." (Doc. 60 at 21). 

This Court is now faced with an issue not previously addressed by the Third Circuit 

or any district courts within it: the meaning and scope of "adjacent" when applied to gas 

extraction through fracking in Pennsylvania. Thus, we look to such guidance as is presently 

available. 

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1. The Sixth Circuit's plain meaning interpretation of "adjacent" in Summit 

Petroleum v. EP.A 

As the only federal case decided on the Circuit level addressing nearly identical 

issues to those currently before this Court, the Sixth Circuit's decision in Summit Petroleum 

v. EP.A offers a persuasive, though non-binding, interpretation of the EPA's regulations 

regarding aggregation for purposes of determining whether two or more properties are 

"contiguous" or "adjacent." See Summit Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. 

2012). In Summit Petroleum, Petitioner Summit Petroleum Corporation appealed from a 

final action by the EPA determining that a natural gas sweetening plant and various sour 

gas production wells owned by Petitioner and separately located within an area of 

approximately forty-three square miles constituted a single stationary source under the 

EPA's Title Vpermitting program. Id. at 735. At issue was the EPA's conclusion that 

Summit's facilities were located on adjacent properties because, although physically 

independent, they were "truly interrelated." Id. The Sixth Circuit agreed with Petitioner that 

the EPA's determination that the physical requirement of adjacency can be established 

through mere functional relatedness was unreasonable and contrary to the plain meaning of 

the term "adjacent"; therefore vacating the EPA's determination and remanding the case to 

the EPA to determine whether Summit's sweetening plant and gas wells were "sufficiently 

physically proximate to be considered 'adjacent' within the ordinary, i.e., physical and 

geographical, meaning of that requirement." Id. 

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In Summit Petroleum, the EPA argued that the term "adjacent" is necessarily 

ambiguous "because the EPA has never defined a specific physical distance by which it is 

defined or with which it is simultaneous .. . [and] that '[a]s applied to plant operations that 

vary enormously across the different industries regulated by the [CM], [the term "adjacent"] 

is at minimum ambiguous as to whether emissions units that are part of an integrated 

industrial operation and located 500 feet to roughly eight miles apart may be considered to 

be located on "adjacent" properties.'" Summit Petroleum, 690 F.3d at 741 (emphasis in 

original). Relying on the dictionary definition, etymological history of the term "adjacent," 

and applicable case law, the Circuit rejected the EPA's interpretation and found the term 

"adjacent" to be unambiguous. Id. The Court specifically pointed to the lack of any citation 

by the EPA to authority suggesting that the term "adjacent" "invokes an assessment of the 

functional relationship between two activities" as well as the Court's own inability to find any 

such authority, and further deterrnined that the EPA's interpretation of "adjacent" to include 

a functional relationship test was inconsistent with both the regulatory history of Title V as 

well as the EPA's own guidance memorandums regarding the application of Title V 

regulations to the oil and gas industry. Id. at 742, 746-749. 

2. The PADEP October 6, 2012 Memorandum allowing consideration of 

interdependence. 

In late 2012, following the Sixth Circuit's decision in Summit Petroleum, PADEP 

issued final guidance for determining when sources should be considered contiguous or 

adjacent for the purpose of determining whether aggregation is appropriate. See PADEP 

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Guidance for Perforrning Single Stationary Source Determinations for Oil and Gas 

Industries, Doc. No. 270-0810-006 (Oct. 6, 2012) (hereinafter "PADEP Guidance"). The 

Guidance provides that "the plain meaning of the terms 'contiguous' and 'adjacent' should 

be the dispositive factor when determining whether stationary sources are located on 

contiguous or adjacent properties." PADEP Guidance, at 6. However, this statement is 

preceded by the statement that "interdependence may be considered when conducting a 

single source determination."16 Id. 

Citing the American Heritage Dictionary of the English Language, PADEP Guidance, 

mirroring the Summit Petroleum decision, defines "adjacent" as "close to; lying near; next to; 

adjoining." See PADEP Guidance, at 5; Summit Petroleum, 690 F.3d at 742. Consultation 

of other dictionaries yields nearly identical results . See, e.g., Oxford English Dictionary, 

available at www.oed.com (search "adjacent") (last visited Feb. 18, 2015) ("Next to or very 

16 The Court notes that, following the denial of the EPA's petition for rehearing in Summit 

Petroleum, the Director of the EPA's Office of Air Quality Planning and Standards issued a memorandum 

stating that "the EPA may no longer consider interrelatedness in determining adjacency when making 

source determination decisions in its title V or NSR permitting decisions in areas under the jurisdiction of 

the 6th Circuit . . . [but] [o]utside the 6th Circuit, at this time, the EPA does not intend to change its 

longstanding practice of considering interrelatedness in the EPA permitting actions in other jurisdictions." 

EPA Memorandum, Applicability of the Summit Decision to EPA Title V and NSR Source Determinations 

(Dec. 21 , 2012), at 1-2 (hereinafter "Summit Directive"). 

In 2014, the U.S. Court of Appeals for the District of Columbia held that the Summit Directive 

violated the agency's regional consistency regulations and vacated the EPA's memorandum. See Nat'l 

Envtl. Oev. Ass'n's Clean Air Project v. EPA., 752 F.3d 999 (D.C. Cir. 2014). As a result, while the EPA's 

position may have previously supported Plaintiff's contention that this Court should consider 

interrelatedness as a factor in our analysis despite the Sixth Circuit's holding in Summit Petroleum, this is 

no longer the case. The D.C. Circuit's ruling forecloses reliance upon the EPA's Summit Directive except 

to the extent that the EQP and PADEP have promulgated regulations the effect of which is to place more 

stringent restrictions on the issuance of GP-5 permits by recognizing a broader definition of what may be 

deemed to be a "major" source of emissions. See 40 C.F.R. § 51.165(a)("Deviations ... will be approved 

only if the State specifically demonstrates that the submitted definition is more stringent, or at least as 

stringent, in all respects. . . . "). 

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near something else; neighbouring; bordering, contiguous; adjoining"); Merriam-Webster, 

available at www.merriam-webster.com (search "adjacent") (last visited Feb. 18, 2015) ("Not 

distant: nearby"; "having a common endpoint or border"). 

The PADEP Guidance further states that "only sources that are in close proximity 

should be considered contiguous or adjacent properties for single source determination 

purposes" and provides several factors that should be considered in determining whether 

sources are contiguous or adjacent, specifically: 

(1) properties located within a quarter mile are considered contiguous or 

adjacent; (2) sources within this quarter-mile distance should be aggregated 

so long as they meet the other two regulatory criteria (same industrial 

grouping and common control); (3) emission units on two or more separate, 

but nearby, properties and separated by an intervening railroad, road, or 

some other obstacle may be considered contiguous or adjacent; (4) facilities 

should not be "daisy-chained" together to establish a contiguous grouping; 

and (5) properties located outside a quarter mile may be considered 

contiguous or adjacent on a case-by-case basis. 

Id. at 6-7. Here, it is undisputed that the properties are not located within a quarter mile, 

and that whether the properties are separated by an intervening railroad, road, or other 

obstacle is not at issue, thereby negating consideration of the first, second, and third factors 

(see Unoff. Tr. at 11-12). The issue thus becomes what factors a Court should consider 

when applying PADEP Guidance in conducting a case-by-case analysis when determining 

whether properties separated by more than a quarter of a mile are "contiguous or adjacent." 

PADEP Guidance recognizes that neither state nor federal regulations define the 

terms "contiguous" or "adjacent" nor do the regulations place any definitive restrictions on 

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the maximum distance permissible wherein two emissions units can still be considered to be 

located on contiguous or adjacent properties. Other than providing the dictionary definitions 

of "contiguous" and "adjacent", the Guidance fails to provide any specific direction with 

respect to determining what constitutes contiguousness or adjacency when conducting a 

single source determination. However, PADEP Guidance that lithe plain meaning of the 

terms 'contiguous' and 'adjacent' should be the dispositive factor when determining whether 

stationary sources are located on contiguous or adjacent properties," cautions that any 

consideration of interdependence in determining whether two or more facilities should be 

aggregated must be undertaken separately from, but not to the exclusion of, a determination 

of physical and geographic adjacency. 

C. There is no triable issue of fact when "adjacent" is defined solely 

with respect to physical and geographic proximity. 

As a result of Plaintiffs Supplemental Statement Concerning Disputed Issues of 

Fact, the geographic distance between the individual stations, as well as the size of the area 

within which the stations are encompassed, are undisputed. Plaintiffs Statement, to which 

Ultra has agreed to stipulate, sets forth the precise locations of Ultra's compressors, in 

terms of latitude and longitude, as well as the linear distances between the compressor 

stations, and the total area within which the compressor stations are located. (Doc. 70, at 

1l1l3-5; Doc. 71, at 1-2). Of note, four sets of compressor stations are within one mile of 

each other (Thomas BOB - Pierson B01; Kjelgaard - Lick Run; Button - Ken Ton; Pierson B10 

- Kjelgaard) and the shortest linear distance between any two compressor stations is .7B 

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mile (Thomas 808 - Pierson 801). The Lick Run compressor station and the Button 

compressor station are the furthest apart at 4.43 miles, followed closely by the 3.96 miles 

separating the Lick Run compressor station and the Ken-Ton compressor station. 

When aggregating Ultra's eight compressor stations, two sets of stations are 

separated by approximately 4 miles and one set of stations is separated by approximately 3 

miles. Even when considering the emission sources with the highest NOx emission 

potential, as Defendant properly states, the Court would have to aggregate at least five of 

Ultra's compressor stations in order to reach a NOx emission in excess of 100 TPY (see 

Doc. 62 at 6 n.2): Pierson 810; Thomas 808; Button; Lick Run; and Pierson 801. This would 

require the Court to aggregate the Lick Run and Button stations, located 4.43 miles apart, 

as well as the Thomas and Lick Run stations, located 3.09 miles apart. Even accepting the 

parties' stipulation that "if lines were drawn between Ultra's compressors to delineate [the] 

linear distances [between the compressors], the total area within the lines would be less 

than five (5) square miles" (Doc. 70, ~ 5; Doc. 71, at 1-2), this distance fails to establish that 

the multiple lands necessary to create a "major" source are sufficiently close to, or near 

enough, each other to be considered adjacent. 

Furthermore, the manner in which Plaintiff urges the Court to aggregate Ultra's 

stations runs afoul of PADEP Guidance that facilities should not be "daisy-chained" together 

to establish a contiguous grouping. Given that the regulations prohibit sources from being 

"daisy-chained" when conducting a case-by-case analysis, it must follow that properties can 

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also not be "daisy-chained" in order to meet the key requirement of contiguousness or 

adjacency. Here, the Court would be required to "daisy-chain" a number of properties and 

their sources in order to find that Ultra's facilities constitute a "major" source. 

Because a number of separate and unconnected parcels of land on which the 

compressors are located would have to be aggregated in order for the NOx emissions to 

reach the level of a "major" source, and some of these properties are separated by several 

miles, the properties at issue cannot reasonably be considered under either Summit 

Petroleum or PADEP Guidance to be "adjacent." 

D. Assuming an interdependent approach is appropriate, Plaintiff has 

failed to present a triable issue of fact as to Defendant's assertion that 

the facilities are not interdependent. 

Penn Future urges this Court to adopt an "operational and functional interdependent" 

approach wherein whether the facilities are functionally interdependent is considered one 

factor in deterrnining adjacency. (Doc. 60). Specifically, Plaintiff contends that '''physical 

proximity' is not an absolute, self-executing concept; it necessarily turns on factors other 

than physical distance." (ld. at 15). In turn, Ultra argues that the Court should follow the 

Sixth Circuit's strict approach but contends that, regardless, the individual facilities are not 

functionally interdependent and therefore the issue of whether proximity should include a 

consideration of interdependence is moot. (See generally, Docs. 58, 62; Unoff. Tr. at 26). 

PennFuture admits that no genuine issue of material fact exists such as to prevent 

the Court from determining whether Ultra's facilities are functionally interrelated. See 

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PennFuture's Supplemental Statement Concerning Disputed Issues of Fact (Doc. 70, ~ 6) 

("[w]ith respect to the functional and operational interrelatedness of Ultra's sources ..., it is 

PennFuture's position that the current record contains all of the facts material to a 

determination by this Court of whether Ultra's compressor stations are functionally and 

operationally interrelated."). It is undisputed that there is no relationship between the 

compressor stations, except in the satellite arrangements which do not have the NOx 

potential to emit over 100 TPY, and that each compressor station is connected to the 

metering and regulation station, but not to each other. (Unoff. Tr. at 33; Doc. 55, ~ 24; Doc. 

59, ~ 24). The compressor stations do not rely on each other, and if one station stops 

working, this does not prevent the other stations from operating. The parties further agree 

that the metering and regulation station adjusts the pressure and adjusts and measures the 

amount of gas that enters the natural gas pipeline. (Doc. 55, ~ 18; Doc. 59, ~ 18). While 

PennFuture disputes that the metering and regulation station does not emit air contaminants 

due to this station's alleged release of methane (Doc. 59, ~ 18), it admits that the metering 

and regulation station does not emit NOx. (Doc. 60, at 16; Unoff. Tr. at 59). As such, at 

issue is only the application of the undisputed facts to the law. 

Despite this Court's finding that the plain meaning of "contiguous" and "adjacent" 

should control a determination of whether two or more facilities should be aggregated, we 

decline to hold that functional interrelatedness can never lead to, or contribute to, a finding 

of contiguousness or adjacency. PADEP Guidance and EHB decisions have both 

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recognized that interdependence, and whether the sources meet "the common sense notion 

of a plant," may be factors in single source aggregation decisions in PennsylvaniaY While 

Summit Petroleum emphasizes the importance of applying the plain meaning of the term 

"adjacent", the Court views the willingness of PADEP to permit consideration on a case-bycase basis of the interdependence of facilities when determining whether they should be 

aggregated as a single source to be a proper exercise of the authority granted to 

Pennsylvania under the CAA to adopt "more stringent, or at least as stringent" definitions of 

the terms defined by the EPA. See 40 C.F.R. 51.165(a)(1). Consideration of 

interdependence in certain circumstances enlarges the definition of a "facility", requiring that 

the NNSR meet a more stringent requirement in order to avoid being found to be a "major" 

source, since an inquiry into the interdependence of two or more emitting facilities may 

result in the aggregation of more emission sources than would be aggregated if the inquiry 

were limited solely to physical or geographic adjacency. This application also serves to 

17 See, e.g., Clean Air Council v. Commonwealth of Pennsylvania, Dep't of Environmental 

Protection, EHB Docket No. 2011-072-R, at 1-2 ("The Board is not persuaded by the Permittee's argument 

that functional relationship should never be considered in determining whether two or more pollutant 

emitting activities are 'adjacent' for purposes of air quality regulation ."). 

See also, e.g., Nat'l Fuel Gas Midstream Corp., et al. v. Commonwealth of Pennsylvania, Dep't of 

Environmental Protection, EHB Docket No. 2013-123-B, at 10 (Oct. 31, 2014; corrected Nov. 3, 

2014)(Finding on a motion for summary judgment that "there are issues of material fact as to whether a 

support relationship exists [between the two sources at issue]"); Nat'l Fuel Gas Midstream Corp. , et al. v. 

Commonwealth of Pennsylvania, Oep't of Environmental Protection, EHB Docket No. 2013-206-B, at 14 

(Nov. 4, 2014)(Denying summary judgment in part based on "a mixed question of fact and law regarding 

what factors to consider in determining whether sources should be considered a single plant and what 

significance to give the issue in analyzing whether it satisfies the regulatory requirement"). 

We note that in both of the immediately aforementioned EHB cases, the Board denied summary 

judgment based on numerous disputed issues of fact, finding that the issues should be decided "with the 

benefit of a full factual record and post-hearing briefs." Here, the parties have agreed that no factual 

dispute exists such as to prevent the Court from determining whether Ultra's compressor stations are 

functionally and operationally interrelated. 

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promote the CAA's goals of encouraging and assisting States in curtailing air pollution and 

assuring better air quality. 

Here, while no pipelines connect the individual compressor stations (Unoff. Tr. at 

33), each of the NOx emission sources is physically connected to the same metering and 

regulation station. Therefore, based on each facility's connection to the central metering 

and regulation station, Plaintiff argues that the operations of all of the compressor stations 

are integrated and collectively function as a production unit that provides gas to the 

transmission pipeline through the metering and regulation station, effectively working 

similarly to a plant wherein the metering station provides the finishing process, and thus 

must be considered interdependent. (Doc. 60, at 15-16; Unoff. Tr. at 32-34, 40). 

Specifically, Plaintiffs logic is as follows: 

Ultra's wells and compressor stations are interdependent with its equipment 

at the metering and regulation station because that equipment performs the 

final, essential functions of adjusting the pressure and measuring the amount 

of all gas produced by Ultra's Marshlands wells before the gas enters 

Dominion's LN-50 pipeline. By way of the metering and regulation station, all 

of the wells and compressor stations are also interdependent with each other, 

because all of the gas transported through Ultra's gathering system is 

ultimately channeled into a single Ultra pipeline at the metering and regulation 

station. In short, Ultra's wells, its compressor stations and pipelines, and 

Ultra's equipment at the metering and regulation station function together in 

the manner of a plant that delivers gas from the Marshlands Play in a 

condition ready for entry into Dominion's pipelinie [sic]. 

(Doc. 60, at 15-16). 

In support of its argument, Plaintiff makes similar arguments to those put forth by the 

EPA in Summit Petroleum with respect to the definition and scope of the term "adjacent" 

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and urges this Court to disregard the Sixth Circuit's holding in Summit Petroleum. In 

particular, Plaintiff relies in part on Judge Moore's dissent in Summit Petroleum. (Doc. 60, 

at 20-21). Judge Moore's dissent states, inter alia, that "functional interrelatedness" is one 

factor that can playa role in the determination of whether two objects that are at a given 

distance apart are adjacent, and argues that in Petitioner Summit's case, "functional 

interrelatedness" had a physical dimension because each stationary source was connected 

through a dedicated pipeline. Summit Petroleum, 690 F.3d at 752-753. The dissent 

contends that the Summit operation was "not only functionally interrelated but physically 

interconnected" given that: 

Each source (gas well, flare and sweetening plant) is a stop along a single 

physically connected process; each well is 'next to' and 'immediately 

precedes' the following well, for example. Nothing outside of this process 

either physically or functionally interrupts the traverse of gas from an 

underground field through the gas wells and past the flares to the sweetening 

plant. The properties on which each well or flare are located are likewise 

connected to each other, and to the property on which the plant is located. 

Id. at 753. PennFuture's reliance on this dissent is unhelpful. Unlike Judge Moore's 

description of the location of Summit's sweetening plant and gas wells, in the present case, 

the emission stations do not follow each other, the pipelines are not connected through a 

single process, and no pipeline connects each of the individual compressors to one another. 

PennFuture's argument is thus not sustainable. It is undisputed that the gas from 

each compressor station flows in only one direction to the same metering and regulation 

station. These compressor stations are not connected in any other way, and operate 

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independently of one another. Other than their physical location, there is no discernable 

relationship between the individual ernission stations. While PADEP Guidance and EHB 

decisions have both recognized that interdependence may be a factor in conducting a single 

source determination, they also make clear that the plain meaning, as found in the 

dictionary, of the terms "contiguous" and "adjacent", and not the interdependence between 

the sources, should be the dispositive factor in determining whether stationary sources are 

located on contiguous or adjacent properties. As such, to look beyond the plain meaning of 

the terms "contiguous" and "adjacent" when conducting a case-by-case determination, the 

case should present a unique factual scenario. Plaintiff has not pointed to any record facts 

to demonstrate that Ultra's individual facilities are in any way unusual or outside of the 

normal oil and gas configurations and arrangements contemplated by PADEP. 

Nonetheless, the Court recognizes the risk that a strict application of the plain 

meaning of the terms "adjacent" and "contiguous" may allow oil and gas exploration and 

production companies to manipulate or structure their wells and compressors in such a 

technical way as to avoid being deemed a "major" source, including by avoiding the 

aggregation of their wells and compressors. As a result, we depart from the Sixth Circuit's 

interpretation of "adjacent" to the extent that it prohibits any consideration of 

interrelatedness or interdependence, and we emphasize the importance of the PADEP 

Guidance recommending that a "case-by-case determination is needed to determine if 

sources are considered contiguous or adjacent." We agree with the majority in Summit 

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Petroleum that the plain meaning of "contiguous" and "adjacent", when applied, should 

normally operate to allow a determination as to whether stationary sources should be 

aggregated. However, we recognize that to strictly limit that determination so as to never 

consider functional interrelatedness would run afoul of PADEP's Guidance and could very 

likely lead to the anomalous situation wherein emitting sources which are clearly functionally 

related are able to avoid the more stringent standards applicable to "major" sources under 

the CM and state law because of a wooden and inflexible definition of adjacency. 

Nevertheless, solely because independently functioning compressors ultimately deposit gas 

from the individual wells each separately services into a common pipeline for transmission 

in the market does not establish functional interrelatedness. Thus, in the instant action, 

PennFuture has presented no material facts to dispute Ultra's contention that the properties 

are not physically proximate and that the emission sources are not interrelated. 

E. Public policy considerations. 

Ultra's final arguments that Plaintiff should not be allowed to come to federal court 

and challenge the construction permits issued by PADEP after the company has relied on 

the permits and expended significant resources building the facilities at issue, and that 

Plaintiff is thereby asking the Court to conduct an ad hoc hearing to determine the scope of 

functional interdependence and its weight in relation to proximity and adjacency (Doc. 58, at 

19-23; Unoff. Tr. at 43-50) has no real place in this summary judgment determination. The 

Court takes note of PennFuture's failure to act prior to its filing of the present action, despite 

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having actual and/or constructive notice of each GP-5 permit approvals issued to Ultra by 

PADEP, as well as Plaintiffs decision not to appeal any of these GP-5 permit approvals to 

the EHB.18 However, this issue is irrelevant in light of our prior ruling on Defendant's motion 

to dismiss, finding that the CM gives a party the right to bring an action such as this one 

directly to federal court. 

V. CONCLUSION 

For the foregoing reasons, the Court will grant Defendant Ultra Resources, Inc.'s 

Motion for Summary Judgment (Doc. 55). A separate Order follows. 

18 In oral argument, counsel for PennFuture stated that Ultra has placed in dispute PennFuture's 

reasons for filing this case in federal court and not to file any appeals to the EHB. (Unoff. Tr. at 55-56). 

PennFuture's motives are ultimately irrelevant here and we disagree that such a factual dispute is material 

to the resolution of this case. 

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