Lloyd A. Fry Roofing Co. v. United States EPA, 76 CV 230 W-4.
| Decision Date | 25 June 1976 |
| Docket Number | No. 76 CV 230 W-4.,76 CV 230 W-4. |
| Citation | 415 F. Supp. 799 |
| Parties | LLOYD A. FRY ROOFING COMPANY, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY et al., Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Thos. J. Leittem, John H. Altergott, Jr., Shuggart, Thomson & Kilroy, Kansas City, Mo., for plaintiff.
Albert D. Hoppe, Asst. U. S. Atty., Kansas City, Mo., Henry F. Rompage, Environmental Protection Agency, Kansas City, Mo., Bruce J. Chasan, Atty., Dept. of Justice, Washington, D. C., for defendants.
MEMORANDUM AND ORDER DISMISSING CAUSE
This action for declaratory and injunctive relief was brought pursuant to provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Declaratory Judgment Act, 28 U.S.C. § 2201, and the Clean Air Act of 1970, 42 U.S.C. § 1857 et seq. Plaintiff asserts jurisdiction under 28 U.S.C. § 1331(a) on the ground that this action involves a question of the constitutionality of the orders, actions, regulations, and applications of the Clean Air Act as applied and enforced by defendant and the amount in controversy exceeds the sum of $10,000 exclusive of costs. In addition, jurisdiction is asserted under 28 U.S.C. § 1337 on the ground that a substantial portion of asphalt roofing manufactured by plaintiff involves raw materials and final products which are distributed through channels of interstate commerce.
Plaintiff, Lloyd A. Fry Roofing Company, is a corporation duly organized and existing under the laws of the State of Delaware and qualified to do business in various states of the United States, including the State of Missouri. Plaintiff is engaged in the manufacturing, sale, distribution and transportation of asphalt roofing products in various states of the United States. Plaintiff operates a plant in North Kansas City, Missouri, where it manufactures asphalt roofing by a process of dipping felt into hot asphalt. This process causes by-products which are put through an air pollution control system including a water scrubber located at the base of the 100-feet-high, 4-feet-in-diameter stack. The emission from this stack is known as a "plume," and is the subject around which this action revolves.
Defendant United States Environmental Protection Agency (EPA) is an independent agency and unit of the Executive Branch of the United States government pursuant to Reorganization Plan 3 of 1970, effective December 2, 1970. Defendant agency was delegated the authority to establish procedures, methods and requirements to prevent discharge of certain air contaminants into the ambient air from any source of emission. Defendant agency further is authorized to enforce regulations issued by it and to assess and compromise civil penalties in connection with the enforcement of its regulations. Region VII of the Environmental Protection Agency (hereinafter referred to as "EPA") is comprised of the States of Missouri, Nebraska, Kansas and Iowa.
Defendant Russell Train is the presently appointed and acting Administrator of the defendant EPA. In his official capacity, defendant Train is charged with responsibility for the operation and activities of defendant EPA and with enforcing the regulations of defendant EPA under the Clean Air Act of 1970 as amended, 42 U.S.C. § 1857 et seq. Defendant Jerome Svore is the Administrator for Region VII of defendant EPA, responsible for administering the regulations of defendant EPA in Region VII under the Clean Air Act of 1970 as amended. Defendant Earl J. Stephenson is the Director of the Enforcement Division of Region VII of defendant EPA and is responsible for enforcing the regulations of defendant EPA in Region VII, under the Clean Air Act of 1970 as amended. Hereinafter, all defendants may be referred to jointly as "EPA".
Under 42 U.S.C. § 1857 et seq., defendants EPA and Train approved certain regulations known as "Air Quality Standards and Air Pollution Control Regulations for the Kansas City Metropolitan Area," which had been submitted by the State of Missouri as a part of the state's implementation plan under section 110(a) of the Clean Air Act, 42 U.S.C. § 1857c-5(a). The primary portion of these regulations for the Kansas City Metropolitan Area, Regulation V — Restriction of Emission of Visible Air Contaminants, provides in pertinent part as follows:
As a portion of a State Implementation Plan, Regulation V is enforceable pursuant to the provisions of the Clean Air Act. The Act provides that if a source is not in compliance with the provisions of an applicable State Implementation Plan, and if it does not have a variance approved by the State and the EPA, the Administrator issues a Notice of Violation. 42 U.S.C. § 1857c-8(a)(1). If the violation continues for more than thirty days, the Administrator may commence a civil action for injunctive relief pursuant to the Act, 42 U.S.C. § 1857c-8(b)(2), or he may issue an Order requiring the source to comply with the requirements of the Implementation Plan. Before such an Order may take effect, the source to whom it is issued must have had an opportunity to confer with the Administrator concerning the alleged violation. 42 U.S.C. § 1857c-8(a)(4).
On September 25, 1975, defendant Svore, as Regional Administrator of EPA, issued his Notice of Violation, informing plaintiff that it was found to be in violation of Regulation V and indicating that if the violation continued beyond 30 days from September 25, 1975, the Administrator could issue an order requiring compliance with the requirements of the implementation plan or commence a civil action for appropriate relief. The Notice of Violation further warned that 42 U.S.C. § 1857c-8 provides for criminal penalties in certain cases.1 The notice did not mention the requirement that a formal due process hearing is necessary before an order can be issued.
Plaintiff requested an informal conference. Instead, a formal hearing was held on November 7, 1975, at defendant EPA's Region VII office in Kansas City, Missouri.2 Subsequent to that hearing, EPA's January 9, 1976, letter to plaintiff, written under authority of 42 U.S.C. § 1857c-9, demanded installation, at plaintiff's expense, of scaffolding adjacent to and testing ports in plaintiff's 100-feet-high stack at approximately 50 feet in the air for purposes of an EPA stack test. Plaintiff twice refused to obligate itself for the expense of the scaffolding and test (estimated to be approximately $3500), but consented to allow EPA to conduct such tests at EPA's expense.
On March 9, 1976, defendant Stephenson, as Director of the Region VII Enforcement Division, issued his Order requiring plaintiff to complete certain specified milestones on or before the dates specified in said Order to achieve compliance with Missouri Regulation V, and ordering plaintiff to certify by letter to defendant Stephenson within ten days after each milestone whether the milestone had been met.
On April 13, 1976, plaintiff filed this action. In its complaint, the plaintiff contends (1) that it has complied in all respects with Regulation V. The complaint further asserts (2) that defendants' Notice of Violation, Order, and other threatened action are the result of unauthorized decisions of defendants based upon unwritten interpretations and unpublished interpolations of defendants' internal guidelines and in addition to defendants' written regulations. Specifically, plaintiff points out that the requirements of Subpart A of Regulation V do not apply where the presence of "uncombined water" is the only reason for failure of an emission to meet the required standards. Since the regulations do not define the term "uncombined water," and since said term is not defined within the applicable statutes or within general definitions under Regulation I of the Kansas City Metropolitan Area Regulations, and as, according to plaintiff, this term does not have an ordinary meaning and usage among laymen, plaintiff contends that the regulations are unconstitutionally vague, ambiguous, indefinite, and conflicting.
Plaintiff further asserts, in essence, that Subpart C of Regulation V requires EPA to utilize any means of measurement which provide results of greater accuracy than those achieved under the Ringelmann Chart. According to plaintiff, the Ringelmann Chart, which is well-recognized as a test for measuring the opacity of a plume, by so-called smoke reading, is incapable of measuring the presence of "uncombined water" within the meaning of the exception provided in Regulation V-B and hence is unsatisfactory as a means of determining whether or not plaintiff is in violation of the regulation. Plaintiff therefore contends that (3) defendants' Order and Notice of Violation are not based upon substantial evidence and are void as arbitrary, capricious, not warranted by the facts and contrary to law.
Plaintiff further contends that its own wet-bulb and dry-bulb readings recorded at the bottom of the stack, above the scrubber, indicate a water-saturated mixture at that...
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