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United States v. Narragansett Improvement Co.

Citation: 14 ELR 20168
No. No. 79-0210, 571 F. Supp. 688/19 ERC 2212/(D.R.I., 07/17/1983)

The court rules that substantial replacement of plant components resulting in no emission increase does not make the plant a new source under Environmental Protection Agency (EPA) Clean Air Act § 111 new source performance standards (NSPS) so long as the work was completed prior to proposal of EPA's reconstruction rule in October 1974. The court first rules that the reconstruction of defendant's asphalt concrete plant was not construction of a new source for NSPS purposes. The plain meaning of the term, judicial interpretation, and the legislative history of § 111 all support this conclusion. EPA's contrary interpretation is plainly erroneous and not entitled to deference. The court next rules that the reconstruction was not a modification under § 111. The statutory language and judicial interpretation make clear that changes in a plant qualify as modifications activating the NSPS only if they increase emissions. There is no evidence that defendant's emissions increased as a result of the plant changes. Finally, the court rules that EPA's reconstruction rule, which defines a rebuilt facility as a new source under § 111 if the value of the new components is greater than 50 percent of the replacement value of the plant, does not apply retroactively. Defendant reasonably relied on the prior rules governing new sources and would suffer substantial burdens by retroactive imposition of the reconstruction rule. The public interest served by requiring the defendant to comply with the stringent NSPS does not outweigh the potential harm to defendant in this case.

Counsel for Plaintiff
John C. Hammock
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2285

Everett C. Sammartino, Ass't U.S. Attorney
P.O. Box 1401, Providence RI02901
(401) 254-1785

Counsel for Defendant
John R. Allen, Gregory L. Benik
Hinckley & Allen
200 Fleet Nat'l Bank Bldg., Providence RI 02903
(401) 274-2000