MEMORANDUM OPINION

ROBERT D. MARIANI, District Judge.

I. Introduction

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. PennFuture contends 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 responds that it properly applied for and received less stringent permits (GP-5s) from the Pennsylvania Department of Environmental Protection ("PADEP"). In issuing these GP-5s, PADEP decided to issue a permit to each compressor station as an individual NOx emitting facility instead of aggregating the facilities. Had PADEP aggregated the facilities, PennFuture argues, Ultra would have needed a major source permit.

Ultra 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 GP-5 permits was before the Pennsylvania Environmental Hearing board ("EHB"). In support of its argument, Ultra says that if this Court were to recognize PennFuture's ability to bring this citizen suit, it would "allow citizens' groups to circumvent the established process and procedures under Pennsylvania law for challenging PADEP's permitting decisions." (Doc. 16, at 3). The motion has been fully briefed and is ripe for review.

II. Statutory Background

Though it enacted the CAA, Congress has found "that 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), with assistance and guidance from the federal government. Id. at 7401(a)(4). That is, each state, not the Environmental Protection Agency ("EPA"), issues any and all permits sought. Thus, consistent with the aims of the CAA, 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 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,1 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 ("EQB") to develop rules and regulations to implement the provisions of the CAA,2 and PADEP evaluates applications and issues the appropriate air permits for constructions of new emission sources or for modifications to existing emissions sources.3

PennFuture has filed suit under Section 304 of the CM, which provides:

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.5 The CAA defines a "major emitting facility" as found in Section 304 as "any stationary facility6 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. § 7602(j).7

Defendant's compressor stations emit NOx. 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,8 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 a case-by-case basis. Id.

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 if the construction or modification for which authorization is sought triggers NNSR requirements under Subchapter E. PADEP issued seven GP-5s to Ultra to construct and operate various compressor stations and associated equipment, which Ultra built beginning in 2009. (Compl., ¶¶ 2, 38-39, 45-46, 52-53, 59-60, 66-67, 73-74, 80-81). Each of the seven compressor stations emits less than 100 tons per year of NOx, so Ultra did not apply for a Part D permit.

Plaintiff argues that the seven compressor stations should have been aggregated as a single source, rendering GP-5s for Ultra's facilities inappropriate. PADEP must determine whether a facility or facilities are a "single source" when "an air contamination source or combination of air contamination sources located on one or more contiguous or adjacent properties" is or are "owned and operated by the same person under common control." 25 PA. CODE § 127.204(a).9 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 therefore ineligible for a GP-5.

The APCA specifically provides: "Any person aggrieved by an order or other administrative action of [PADEP] issued pursuant to this act ... shall have the right, within thirty (30) days from actual or constructive notice of the action, to appeal the action to the hearing board ...." 35 P.S. § 4010.2; see also 25 PA.CODE § 1021.52(a)(2). Failure to timely appeal to the EHB precludes further challenges to PADEP's action. See 35 P.S. § 7514(c) ("If a person has not perfected an appeal in accordance with the regulations of the [EHB], the department's action shall be final as to the person.").

Parties dissatisfied with final decisions of the EHB have the right to appeal to the Commonwealth Court and, from there, to the Pennsylvania Supreme Court. 42 PA. CONS.STAT. § 763(a)(1); 42 PA.CONS.STAT. §§ 723-724. Plaintiff, however, did not seek to appeal any of PADEP's seven permitting decisions to the EHB.10 Instead, Plaintiff filed this Complaint in federal district court after Ultra constructed its facilities pursuant to PADEP's authorizations. Thus, Ultra argues that PennFuture has forfeited its right to seek judicial redress by failing to appeal any of PADEP's permitting decisions to the EHB.

III. Analysis

a. Subject-Matter Jurisdiction

When presented with a motion to dismiss attacking the factual basis for subject-matter jurisdiction, a district court is not bound to accept the allegations in the complaint as true, but is instead "entitled to independently evaluate the evidence to resolve disputes over jurisdictional facts." S.R.P. ex rel. Abunabba v. U.S., 676 F.3d 329, 332 (3d Cir.2012) (citing Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir.1977) ("the district court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.")). The party asserting the court's jurisdiction bears the burden of proving such jurisdiction exists. Nuveen Mun. Trust ex rel. Nuveen High Yield Mun. Bond Fund v. WithumSmith Brown, P.C., 692 F.3d 283, 292-93 (3d Cir.2012).

As an initial matter, the Court concludes that it has jurisdiction to hear this case based on a plain reading of Section 304 and two cases to which Plaintiff cites in which the courts found they had subject-matter jurisdiction under Section 304(a)(3):

42 U.S.C. § 7604(a)(3) (emphasis added).11

In Ogden Projects v. New Morgan Landfill Co., the defendant had obtained a solid waste landfill permit from PADER in lieu of an air contamination permit. 911 F.Supp. 863, 867-68 (E.D.Pa.1996). That is, no air permit had been issued at all. Neither had the solid waste permit required the defendant to obtain a Part D permit.12 The primary basis on which the court concluded it had subject-matter jurisdiction was the plain language of Section 304(a)(3). Because the plaintiff contended that the defendant had failed to obtain a Class D permit before constructing its landfill, the court concluded it had jurisdiction. Likewise, PennFuture claims that Ultra failed to obtain a Class D permit before constructing its compressor stations, properly alleging facts (which Ultra does not dispute) from which the Court can conclude it has jurisdiction to hear the case.

Similarly, in Weiler v. Chatham Forest Products, Inc., the defendant had not obtained a Part D air permit for major source facilities. 392 F.3d 532 (2d Cir. 2004). Instead, it had obtained a "synthetic minor source permit" because it claimed the New York Department of Environmental Conservation ("NYDEC") had determined that a major source permit was unnecessary. The court held that simply because alternative enforcement mechanisms were available in state court did not foreclose the existence of a federal cause of action. Furthermore, Weiler had clearly met its pleading requirements because, as in Ogden and here, it alleged that Chatham had failed to obtain a Part D permit. The Court was not persuaded by Chatham's arguments that Weiler was attempting to collaterally attack NYDEC's decision to issue a synthetic minor permit instead of a Part D permit. "[A] state determination that a prospective source of air pollution is not a major emitting facility does not prevent a private plaintiff from bringing a suit seeking to enjoin the construction of the facility pursuant to ... § 7604(a)(3)." Id. at 539.

Notably, Natural Resources Defense Council, Inc. v. BP Products North America, Inc., a case on which Ultra relies in its arguments in favor of Burford abstention, followed the Second Circuit's decision in Weiler. No. 2:08-CV-204, 2009 WL 1854527 (N.D.Ind. June 26, 2009). In BP Products, the court recognized the similarities between its case and Weiler, noting that BP had obtained "only ... a state law minor permit, and not one required under Part C or D." Id. at *8. In its analysis, the court said "the Second Circuit essentially reviewed the allegations of the complaint and determined that they claimed the defendant proposed to construct a major emissions facility without a permit under parts C or D. That was enough for jurisdiction." Id. (internal citations omitted). Thus, the Court is persuaded that it has subject-matter jurisdiction over this case.

Defendant relies on a handful of cases for the proposition that PennFuture is collaterally attacking the DEP's decision to issue a minor source permit rather than a major source permit, but these cases are inapposite.

In Sierra Club v. Wellington Dev.-WVDT, LLC, several citizen groups challenged PADEP's approval of Wellington's application to build a power plant. No. 08-293, 2008 WL 2048332 (W.D.Pa. May 13, 2008). The approval provided that the permit expired if Wellington did not commence construction within eighteen months of the permit's issuance. Consequently, PADEP determined that Wellington had complied with all relevant statutes and the terms of the permit itself. The plaintiffs appealed PADEP's approval of the plan to the EHB, but the EHB dismissed the appeals. On appeal to the Commonwealth Court of Pennsylvania, the court affirmed EHB's dismissal of the appeal, and the Supreme Court of Pennsylvania denied leave to appeal. After failing to succeed in state court, the plaintiffs then filed suit in federal court under Section 304(a)(3) of the CAA alleging that the permit was invalid because Wellington had not commenced construction within eighteen months of the permit's issuance. However, the court found that the plaintiffs were collaterally attacking the permit because PADEP had already determined that Wellington had commenced construction within eighteen months of the permit's issuance. The court thus dismissed the case for lack of subject-matter jurisdiction. There is no parallel situation here.

In Defenders of Conewango Creek v. Echo Devs., LLC, the same federal court found that the plaintiff had failed to challenge the permits at issue with the EHB but had instead come to federal court. No. 06-242E, 2007 WL 3023927 (W.D.Pa. Oct. 12, 2007). The court concluded that the counts at issue in the motion to dismiss for lack of subject-matter jurisdiction all contained allegations that Echo had failed to meet the terms of the permits themselves.

Id. at *9. Thus, the plaintiffs were not claiming that Echo had failed to obtain a permit required by Section 304(a)(3), but rather, that it was not complying with the terms of the permits it had received. This was a blatant collateral attack on the permits and should have been pursued in state court rather than federal court.13

In CleanCOALition v. TXU Power, 536 F.3d 469 (5th Cir.2008), the Fifth Circuit affirmed the district court's dismissal of the case based on the district court's interpretation of Section 304(a)(3). To the district court, the CAA authorizes citizen suits when an "entity proposes to construct or constructs a facility without a permit whatsoever." Id. at 478-79. The Fifth Circuit explicitly rejected the plaintiff's proposed interpretation of Section 304(a)(3) of "without a permit that complies with the CAA." Id. at 479 n. 13. It "decline[d] to rewrite the plain language of the statute," especially because TXU had applied for and obtained a state permit after the plaintiff had initially filed suit. Id. at 479. Thus, the Court concluded that Section 304(a)(3) "does not authorize preconstruction citizen suits against facilities that have either obtained a permit or are in the process of doing so." Id. In reaching this conclusion, the Fifth Circuit cited Ogden for the proposition that Section 304(a)(3) "authorizes citizen suits when facility is proposing to construct plant without a permit at all." Id.

National Parks Conservation Association v. Tennessee Valley Authority, 175 F.Supp.2d 1071, 1078 (E.D.Tenn.2001) is even less helpful to Ultra's cause. There, the court dismissed the case for lack of subject-matter jurisdiction because the plaintiff had failed to comply with the notice provisions of the CAA. Alternatively, it concluded that the plaintiff was collaterally attacking the SIP, not a permit, of Tennessee's Department of Environment and Conservation (TDEC), which could not serve as the basis for a citizen suit under 304(a)(3). Id. at 1073. Instead, it said that "there is no citizen suit provision allowing a citizen plaintiff to challenge an emission standard or limitation, and that is what plaintiff here seeks to do. Quite simply, plaintiff's dispute is with the State of Tennessee through TDEC for issuing these permits" without receiving approval from the EPA beforehand. Id. at 1079.

Because the Court finds the language of Section 304 clear and the reasoning in Ogden and Weiler persuasive, while Ultra's cited cases are inapplicable, it determines it has subject-matter jurisdiction. Nonetheless, the Court is disturbed by PennFuture's inaction during the state administrative appeals period, especially in light of Ultra's representation that it has completed construction of its seven compressor stations. (Doc. 16, at 3). Defendant argues that PennFuture should have exhausted its state and administrative remedies before proceeding in federal court. 35 P.S. § 4010.2.; 25 PA.CODE § 1021.52(a)(2). Though Weiler clearly favors Plaintiff's position, the Second Circuit inserted a cautionary footnote qualifying its opinion:

Weiler, 392 F.3d at 538 n. 8 (internal citations omitted).

If the Court were to find an exhaustion requirement in Section 304(a)(3), PennFuture would be left without a remedy because the 30-day window in which to appeal any PADER decision to the EHB has lapsed. (See Zaman Aff., Doc. 30, App. C; 35 P.S. § 7514(c)). On the other hand, if the Court does not find an exhaustion requirement, the decision would create perverse incentives for any citizen group to intentionally miss its window to appeal to the EHB and come directly to federal court. In BP Products, though the court ultimately decided to abstain on Burford and Colorado River grounds, it essentially read an exhaustion requirement into the statute by declining to exercise jurisdiction, which would allow citizen groups "to fight the battle on two fronts." This struck the court "as terribly inefficient" and unfair because it gave "opponents of the permit multiple bites of the apple." BP Products, 2009 WL 1854527, at *11.

Nevertheless, the Court will not read in an exhaustion requirement where there is none provided, especially in light of the congressional Conference Report which stated no administrative or procedural requirements are imposed.14 Because the plain language of Section 304(a)(3) gives PennFuture the right to bring a cause of action directly to federal court as recognized by Ogden and Weiler, the Court finds it has subject-matter jurisdiction to hear the case. Ultra argues, however, that even if the Court has jurisdiction, it should abstain from exercising that jurisdiction due to federalism concerns.

b. Abstention

Federal courts have a "virtually unflagging obligation to exercise the jurisdiction given them." Baykeeper v. NL Industries, Inc., 660 F.3d 686 (3d Cir.2011) (citing Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). The framework for determining when abstention under Burford15 is proper has been set forth by the Supreme Court as follows:

New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 361, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) ("NOPSI") (internal quotation marks and citations omitted).17

The court in BP Products found that there were no difficult questions of state law18 bearing on the matter, so if abstention were proper, it must be on the grounds that the exercise of jurisdiction would disrupt state efforts to establish a coherent policy with respect to a matter of substantial public concern. Like the court in BP Products, this Court concludes that the issue of whether PADEP should have aggregated the seven Ultra compressor stations before issuing the appropriate permit(s) is not a difficult question of state law. Therefore, the Court must determine whether the second prong of Burford applies and must examine;

Hi Tech Trans, LLC v. New Jersey, 382 F.3d 295, 304 (3d Cir.2004).

The primary basis for the decision to abstain in BP Products, though, was the existence of parallel state court proceedings. Thus, it concluded, "the state gets to answer [the] question [of whether a Part C or D permit was required] first." BP Products, 2009 WL 1854527, at *11. "And while the issues may ultimately wind up in federal court again, if they do, then at least the federal court will have the benefit of the full state analysis." Id. at *12. No such parallel proceedings exist here, rendering BP Products of little applicability with respect to the abstention analysis in this case.

Undoubtedly, the air permitting regulatory scheme is a matter of substantial public concern, and it may even be the type of complex technical regulatory scheme to which Burford abstention is normally applied. But based on the parties' agreement that these types of permitting decisions must be made on a case-by-case basis, the Court does not see how its participation in this case would interfere with the state's efforts to maintain a coherent regulatory policy. PADEP's decision to issue certain type of permit to Ultra should have little to no bearing on its decision to issue an air permit to another entity, especially if that entity is located in another region of the state.

Once again, Ultra's cited cases are inapposite. Palumbo v. Waste Technologies, Indus., 989 F.2d 156 (4th Cir.1993) involved a claim brought under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 1961 et seq. which explicitly provided for review of the administrator's action "by the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides." No such statutory review provision exists in Section 304(a)(3) of the CAA. Similarly, in Ellis v. Gallatin Steel Co., 390 F.3d 461 (6th Cir. 2004), Sugarloaf Citizens Ass'n v. Montgomery County, 33 F.3d 52 n. 9 (4th Cir. 1994), and Jamison v. Longview Power, LLC, 493 F.Supp.2d 786 (N.D.W.Va.2007), the relevant state agencies had either issued or were in the process of issuing Part C or D permits, bolstering the argument that federal intervention would add only confusion to the mix.

As further support for its argument for abstention, Ultra states that there are currently two cases pending19 before the EHB on the precise question of whether the emissions from an entity's facilities should be aggregated or examined separately when PADEP considers applications for air contamination source permits. However, as PennFuture points out, these permitting decisions should be made on a case-by-case basis,20 thereby severely limiting any sort of precedential value one determination may have on another.21 Furthermore, Plaintiff notes that neither of the two cases pending before the EHB involve either of the parties in this case nor the specific region (e.g., Marcellus Shale), further reducing the value of the outcome of these two cases.

Having surveyed the existing case law on the matter, the Court recognizes that it is difficult to harmonize all of the cases cited above. In the absence of controlling precedent from the Third Circuit, the Court must be guided by the plain language of Section 304, the elements necessitating abstention set forth of Burford and its progeny, and its own considered judgment. Though Ultra argues that PennFuture deliberately avoided Pennsylvania's administrative appeal requirements, the Court's view is it would be improper to abstain from exercising jurisdiction when Congress has clearly established a cause of action for citizen suits in Section 304 of the CM.

IV. Conclusion

For the foregoing reasons, the Court will deny Defendant Ultra's motion to dismiss for lack of subject-matter jurisdiction and will also deny Ultra's motion to abstain. A separate Order follows.