United States v. NARRAGANSETT IMP. CO.

• Decision Date: 17 July 1983
• Docket Number: Civ. A. No. 79-0210.
• Citation: 571 F. Supp. 688
• Parties: UNITED STATES of America, Plaintiff, v. NARRAGANSETT IMPROVEMENT COMPANY, Defendant.
• Court: U.S. District Court — District of Rhode Island

571 F. Supp. 688

UNITED STATES of America, Plaintiff, v. NARRAGANSETT IMPROVEMENT COMPANY, Defendant.

Civ. A. No. 79-0210.

United States District Court, D. Rhode Island.

July 17, 1983.

Edward C. Sanmartino, Providence, R.I. and John C. Hammock, Environmental Enforcement, Land and Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., for plaintiff.

John R. Allen, Providence, R.I., and Gregory Benik, Providence, R.I., for defendant.

OPINION

FRANCIS J. BOYLE, Chief Judge.

Plaintiff, United States of America, brings this action against Narragansett Improvement Company (the Defendant) pursuant to § 113(b) of the Clean Air Act, 42 U.S.C. § 7413(b) (Supp. I 1977). Plaintiff alleges that Defendant has failed to comply with the New Source Performance Standards (NSPS) promulgated by the United States Environmental Protection Agency (EPA), in violation of § 111(e) of the Clean Air Act (the Act). See generally 40 C.F.R. Part 60. In addition, Plaintiff contends that Defendant has violated § 114 of the Clean Air Act, 42 U.S.C. § 7414 (Supp. I 1977), by refusing to comply with EPA written directives to sample its air emissions. Plaintiff seeks injunctive relief and civil penalties for these alleged violations.

Defendant, Narragansett Improvement Company, contends that its facility is not a "new source," as that term is used in § 111 of the Clean Air Act, 42 U.S.C. § 7411, and in the regulations promulgated thereunder. Defendant asserts that the New Source Performance Standards do not apply to its facility. The Court accepts and substantially adopts the reasoning and arguments advanced by Defendant.¹

Narragansett Improvement Company, a Rhode Island Corporation, is engaged in the manufacture and sale of asphalt concrete. Defendant has operated an asphalt concrete plant at its 223 Allens Avenue location in Providence, Rhode Island since at least World War II. The production of asphalt concrete involves drying and heating sand and gravel aggregates and mixing measured portions of these heated aggregates with hot liquid asphalt. Wet aggregate is delivered to the plant and placed in bins for storage. The wet aggregate, as required, is fed by conveyor to a dryer, where it is dried and heated. Since 1974, Defendant has burned waste fuel oil in the burner used in connection with the rotary dryer. The waste oil is filtered to remove some of its impurities and heated prior to use to remove excessive water. An additive is then included to promote better combustion. Following the drying process the aggregate is moved by a bucket-conveyor (elevator) system to the top of the mixing tower. In the mixing tower the aggregate passes through screens which separate by particle size. The aggregate is then dumped into separate hot bins, according to size. The aggregate is stored in these bins until a "batch" of asphalt concrete is needed. At such time the aggregate, in various sizes, is weighed in a weigh hopper, according to the specifications of the order, and dumped into the mixer. Hot liquid asphalt is then added to the aggregate and mixed. After mixing, the batch is dropped into a truck situated underneath the mixing tower. The asphalt concrete hardens quickly in cool temperatures, limiting the production season to late March through November.

The manufacturing process of asphalt concrete produces air emissions consisting of dust particles. The dryer is the first significant potential source of particulate matter pollution in the plant. The hot elevator, the screens and the weigh hopper are also potential sources of particulate matter pollution. The dust generated from these sources is first ducted through the primary cyclone, which removes the larger particles. The remaining dust then moves to the baghouse which filters the polluted air before allowing it to be emitted into the atmosphere.

The Narragansett Improvement Company asphalt concrete plant is comprised of the following components: a rotary dryer; a mixing tower; an elevator; storage facilities for the sand and gravel aggregate; a conveyor system for the feeding and transfer of the sand and gravel aggregate, and the hot asphalt; storage facilities for the hot asphalt concrete; and pollution control equipment. The pollution control equipment consists of a primary cyclone and a fabric filter dust collector, known as a "baghouse."

Between June 11, 1973 and July 15, 1974, Narragansett Improvement Co. replaced its rotary dryer and its mixing tower and substituted its existing air pollution control equipment, an electrostatic precipitator, for a filter baghouse. The new components were integrated with the existing elevator, raw material storage and handling equipment, and hot asphalt storage system. The machinery and equipment which were not replaced are necessary components of an asphalt concrete plant. The cost of the new equipment was approximately $337,000. The cost of the additional parts and equipment, which are an integral part of Defendant's plant but were not replaced in 1973-1974, was about $300,000.

The 1973-1974 replacement activity did not result in a material increase in the production capacity of Defendant's plant, or in any increase in the amount or type of air emissions from that facility. No evidence was introduced at trial which would indicate that Defendant's plant exceeds the NSPS emission limitations, found at 40 C.F.R. § 60.92.

Defendant follows a program of capital improvements whereby a major component of the asphalt concrete plant is replaced annually. Since 1974, Defendant has twice replaced the cyclone portion of the air pollution control equipment, and has replaced the dryer and the entire baghouse. Moreover, Defendant replaces all bags and their frames every winter and as necessary throughout the production season.

A chain of correspondence between the EPA and the Defendant was started on July 1, 1974. The Chief of the Air Branch of the Regional EPA office informed the Defendant, by letter, that the federal regulations for new sources of air pollution may apply to its asphalt concrete plant. Mr. Kirke Everson, the President of the Narragansett Improvement Company, replied on July 24, 1974. That letter detailed the extent of the work at Defendant's plant and expressed Mr. Everson's belief that equipment replacement would not bring the Defendant company within the definition of a "new source."

The EPA Regional Counsel advised Mr. Everson, by letter dated January 24, 1975, that the modification of the asphalt concrete plant placed the Defendant company under the New Source Performance Standards (NSPS), pursuant to § 111 of the Clean Air Act. Specifically, Defendant company was determined to be subject to the Standards of Performance for New Stationary Sources for asphalt concrete plants, delineated at 40 C.F.R. § 60. Mr. Everson was so advised despite an internal EPA memorandum, dated October 9, 1974, which noted that "it is probable that the renovations to the plant have actually resulted in a decrease in net particulate emission rate ...".

Mr. Everson, by letter dated February 26, 1975, requested a redetermination of the EPA decision. The changes made in the asphalt concrete plant were again recited. Mr. Everson further contended that the replacements did not increase the air pollutants emitted by the asphalt concrete plant. The Regional Director for the Enforcement Division of the EPA responded on April 22, 1975. That letter reaffirmed the decision to regard the Defendant company as a new source. The EPA informed Mr. Everson that a proposed regulation, 40 C.F.R. § 60.15, which dealt with "reconstruction" of existing facilities "irrespective of any change in emission rate" was applicable to Defendant's facility. Enclosed with the letter from the EPA was a copy of the Director of the Division of Statutory Source Enforcement's determination, which concluded that Defendant's plant was subject to the New Source Performance Standards.

Letters, dated May 19, 1975, January 12, 1977 and September 9, 1977, were sent from the Regional Director of the Enforcement Division to the President of the Defendant company. All three letters restated the EPA's determination that Defendant's facility was to be considered a new source and, as such, subject to the New Source Performance Standards. Included in the correspondence were details of actions required of Defendant company to determine its compliance with the applicable regulations. The suggestion of filing a complaint against Defendant for violations of the Clean Air Act first emerged in the September 9, 1977 letter.

The EPA's firm intention to proceed with an enforcement action against Narragansett Improvement Company was communicated to Mr. Everson, by certified mail, on October 19, 1978. The Regional Director cited the failure of the Defendant company to perform emission testing, to prove compliance with the New Source Performance Standards, as the basis of the enforcement action. The United States, at the request of the Administrator of the Environmental Protection Agency, filed this civil enforcement action on April 18, 1979.²

Representatives of the EPA visited and inspected Defendant's plant on numerous occasions. Defendant permitted such visits and cooperated fully with all inspectors. Despite having access to the facility Plaintiff did not conduct performance tests that would have precisely measured air emissions. Plaintiff did not submit the results of any visual opacity test relating to the asphalt concrete plant. Such tests, which measure emissions by visual observation of the gasses coming from the stack, could easily have been performed from on, or nearby, the site of Defendant's plant. The only visual opacity test in the record was conducted by Defendant's experts. The only available air emission evidence indicates that the emissions from Defendant's facility were well within the standards specified by the State of Rhode Island. Further, the unrebutted evidence establishes...