THE SUBJECT OF THIS ACTION IS AN ASPHALT PLANT IN MARION, OHIO. THE FACILITY IS A NEW STATIONARY SOURCE AS DEFINED IN THE CLEAN AIR ACT. IN THIS CASE THE DEFENDANT ALLEGEDLY OPERATED MORE THAN 180 DAYS AFTER INITIAL START-UP AND HAS NOT CONDUCTED A PERFORMANCE TEST AS REQUIRED BY THE REGULA- TIONS. ADDITIONALLY, A PERFORMANCE TEST WAS REQUESTED BY EPA AND THE DEFENDANT ALLEGEDLY HAS FAILED TO CONDUCT THE REQUESTED TEST.