STATE OF NORTH CAROLINA

COUNTY OF HENDERSON

IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

01 EHR 2278

______

-4-

CITIZENS AGAINST THE ASPHALT PLANT, a chapter of BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, INC., a North Carolina Corporation,

Petitioner,

v.

N.C. DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, DIVISION OF AIR QUALITY,

Respondent,

and

JOHN L. PACE ENTERPRISES, INC. d/b/a TARHEEL PAVING COMPANY,

Intervenor-Respondent.

______

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

SUMMARY OPINION

AND ORDER

-4-

THIS MATTER came on to be heard before the undersigned Administrative Law Judge ("ALJ") during telephone conference calls on 24, 25 and 29 October 2002 and 6 February 2003 at which all parties were represented by counsel upon Respondent's Motion for Summary Disposition of Contested Case and Petitioner's Motion for a Recommended Decision Granting Partial Summary Judgment to Petitioner. After considering the motions, memoranda and responses thereto, the arguments of counsel, and other relevant materials the ALJ hereby finds and sets forth a summary opinion on legal issues as follows:

1. Appearing for the Petitioner were Lyman J. Gregory, III, and Betty Tenn Lawrence; for the Respondent, Assistant Attorneys General Marc D. Bernstein and Sueanna P. Sumpter; and for the Intervenor-Respondent, William F. Lane, Kilpatrick Stockton, LLP.

-4-

2. This matter involves a dispute regarding Air Permit No. 08977R01, issued by the Respondent to the Intervenor-Respondent, which authorizes the Intervenor-Respondent to operate sources of air emissions and/or air cleaning devices. The permit was issued for the operation of an asphalt production facility in Hendersonville, Henderson County, North Carolina.

3. Petitioner's Petition for a Contested Case Hearing challenged the permit on four grounds: (1) Whether the Respondent was required to include in its air quality model of the Intervenor-Respondent's facility emissions from a liquid asphalt heater, liquid asphalt storage tank, two No. 2 fuel oil storage tanks, and a reject chute; (2) Whether the Respondent was required to include as a permit condition on-site monitoring of toxic emissions; (3) Whether the Respondent was required to determine, based on facts known to the Respondent when it issued the permit, that the facility emitted an "objectionable odor" under paragraph (g)(1) or (g)(2) of 15A N.C.A.C. 2D.1806; and (4) Whether the Respondent was required by 15A N.C.A.C. 2D.0506(b) to require controls on fugitive process condensible particulates and not only controls on fugitive process dust.

4. The pleadings, answers to interrogatories, admissions on file, and affidavits do not demonstrate any genuine issue as to any material fact regarding issues 1, 2 and 4. Summary judgment is appropriate on those issues. Genuine issues of material fact exist regarding issue 3. Summary judgment cannot be rendered on issue 3. N.C.R. Civ. Pro. 56(c).

-4-

5. With regard to Issue 1, the Environmental Management Commission ("EMC") requires that the Respondent model air toxics "with such exceptions as may be allowed under 15A NCAC 2Q .0700." 15A N.C.A.C. 2D.1106(a). Each of the sources the Respondent excluded from modeling (i.e. the liquid asphalt heater, the liquid asphalt storage tank, and two no. 2 fuel oil storage tanks) is within an exception in 2Q.0702(a) and therefore need not be modeled. 15A N.C.A.C. 2Q.0702(a)(18) and (19); Overcash Aff. ¶¶ 9-10. This interpretation is confirmed by 2Q.0702(b), which requires that only some sources listed in 2Q.0702(a) -- sources which are not at issue here -- be modeled under certain circumstances. A recent amendment to 2Q.0702(b), which has been approved by the EMC and the Rules Review Commission, confirms that exempt sources, including the liquid asphalt heater, the liquid asphalt storage tank, and two no. 2 fuel oil storage tanks, shall not be included in determining compliance with the toxic air pollutant requirements in this Section. Subsection (c) indicates that sources exempt from modeling need not be modeled if those sources are added to the facility later. To require those sources to be modeled simply because those sources are at the facility initially would be arbitrary. Further, Petitioner's interpretation would require the modeling of such insignificant sources as office supplies and janitorial products, which is unreasonable. See 15A N.C.A.C. 2Q.0702(a)(4) and (5). The undisputed facts indicate that the Petitioner is not prejudiced by the Respondent's failure to model the reject chute because further modeling demonstrates that the emissions from the reject chute will not cause any violations. Roller Aff. ¶¶ 14-15.

-4-

6. With regard to Issue 2, 15A N.C.A.C. 2D.1106 sets forth the EMC's required strategy for ensuring compliance with Acceptable Ambient Levels ("AALs") of air toxics listed in 2D.1104. The rule requires the Respondent to model the air toxics at a facility to determine the limitations necessary for each permit that would assure compliance. "Enforcing these permit stipulations and conditions shall be the mechanism used to ensure that the requirements of Rule .1104 of this section, with such exceptions as may be allowed by 15A NCAC 2Q.0700, are met." 15A N.C.A.C. 2D.1106(a). There is no dispute that the Respondent followed this method. Overcash Aff. ¶ 12; Roller Aff. ¶¶ 10-15. Neither the General Statutes nor any rule compels the Respondent to require on-site monitoring to assure compliance with the AALs. Absent any other guiding standard, neither an ALJ nor a court may disturb the Respondent's discretion to select a particular enforcement strategy. Heckler v. Chaney, 470 U.S. 821 (1985).

7. With regard to Issue 4, paragraph (b) of 15A N.C.A.C. 2D.0506 requires that "[a]ll hot mix asphalt plants shall be equipped with a fugitive process dust control system ... which shall be operated and maintained ... as to reduce to a minimum the emission of particulate matter from any point other than the stack outlet." "Particulate matter" consists of dry particles, i.e. "dust," and liquid-based particles, i.e. "condensible particulates." See 15A N.C.A.C. 2D.0101(24); van der Vaart 2d Aff. ¶ 2. The plain language of this rule requires a "dust control system." Any other reading would render the word "dust" superfluous. The "fugitive process dust control system" shall be maintained and operated to reduce to a minimum emissions of particulates overall. The undisputed facts demonstrate that the permit requires this and the design of the facility complies with this requirement. van der Vaart 2d Aff. ¶¶ 3-6.

Therefore, it is therefore ORDERED, ADJUDGED and DECREED that,

1. Respondent's Motion for Summary Disposition on Issue 1 (modeling), is GRANTED, and Petitioner's Motion for Recommended Decision Granting Partial Summary Judgment on Issue 1 is DENIED;

2. Respondent's Motion for Summary Disposition on Issue 2 (monitoring), is GRANTED, and Petitioner's cross motion is DENIED;

3. Respondent's Motion for Summary Disposition on Issue 3 (odor control), is DENIED. (Petitioner did not cross move on Issue 3.);

-4-

4. Respondent's Motion for Summary Disposition on Issue 4 (fugitive process dust control), is GRANTED, and Petitioner's Motion for Recommended Decision Granting Partial Summary Judgment on Issue 4 is DENIED;

5. The hearing on Issue 3 shall be in Buncombe County unless otherwise ordered;

6. The parties are directed to submit to the ALJ proposed dates and times for the hearing on Issue 3; and

7. The parties shall confer and prepare and submit to the ALJ, no less than two weeks prior to the hearing, a draft prehearing conference order according to the form set forth in the General Rules of Practice.

SO ORDERED.

This the 9th day of April, 2003.

______

Beryl E. Wade

Administrative Law Judge

-4-