QUESTION 1 (8 points total)
Suppose Ohio River Petroleum Products (ORPP), located outside of Hoosierville, Indiana, has been operating a small refinery since 1969. It is located in a poor, historically African-American neighborhood. For the past several years, it has experienced difficulty complying with the air quality standards established for its existing source under the SIP. So far, ORPP has not faced serious fines or sanctions by either the state or EPA. Nonetheless, the plant managers are concerned that more serious sanctions may be levied in the future. They have asked you to review the legal ramifications of two options.
The first option is to do nothing. Experience suggests that the current facility can be maintained to continue production for the foreseeable future. It earns solid profits even accounting for the slight penalties sometimes levied. More serious enforcement in the future is uncertain.
The second option is to modernize the facility to increase production. It would be an expensive investment that would reduce profits somewhat but still provide a reasonable rate of return for investors. This option would fix all of ORPP’s non-compliance problems, reducing the risk of future enforcement costs.
The company has provided you with the following information.
The refinery is located in the Metropolitan Valley View Air Quality Control Region. It is a PSD area for all criteria pollutants except ozone. The Region is designated a serious NA for ozone. The refinery facility, which includes storage tanks and pipelines, emits:
10,000 tpy of sulfur dioxide
400 tpy of carbon monoxide
30 tpy of VOCs.
The modernization plan would double current production of saleable products. It would reduce sulfur dioxide emissions substantially. But it would increase carbon monoxide emissions to 500 tpy and VOCs to 75 tpy.
Briefly summarize the potential legal ramifications of the two options.
For modernization, be certain you offer suggestions for undertaking the project in such a way as to minimize pollution abatement cost. Do not look beyond the text of the statute and the class materials. You are not expected to describe the particular technologies a refinery modernization may be subject to. But please do state which technology-based standard is likely to apply to the pollutants emitted by the refinery.
Scoring:
A) First option analysis = 2pts
B) Second option analysis
Overall strategy = 1pt
Carbon monoxide = 1pt
Ozone = 4 pts
QUESTION 2 (7 points total)
Read United States v. Plaza Health Laboratories, casebook pp. 579-586. When we return to classes from Fall Break, we will talk about the case’s CWA implications. This question asks you to focus on the persuasiveness of tools and applications of statutory interpretation.
Judge Pratt labels his statutory interpretation as text & structure, legislative history, caselaw, regulatory structure, and lenity. Judge Oakes dissent excerpt emphasizes text & structure and motivating policies (purpose).
A) Defend Oakes’ interpretation employing text and structure as more persuasive than Pratt’s interpretation employing those same tools. (4 pts.)
B) Explain why Pratt’s holding is correct even though he does not directly counter Oakes’ motivating policies (purposive) argument. (3 pts.)
