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United States v. R.M. Packer Company, Inc.

United States District Court, D. Massachusetts

December 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
R.M. PACKER COMPANY, INC., Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
TISBURY TOWING and TRANSPORTATION CO., INC., Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper, United States District Judge

         I. Introduction

         Plaintiff United States of America (“USA”) seeks partial summary judgment on claims pursuant to the Clean Air Act, 42 U.S.C. § 7413(b), against Defendants Tisbury Towing and Transportation (“Tisbury Towing”), D. 41 in 16-10769, and R.M. Packer Co., Inc., (“R.M. Packer”), D. 44 in 16-10767, (collectively, “Defendants”)[1] and the Clean Water Act, 33 U.S.C. §§ 1319(b), against R.M. Packer. For the following reasons, the Court ALLOWS the USA's motion for partial summary judgment against Tisbury Towing, D. 41, and ALLOWS the USA's motion for partial summary judgment against R.M. Packer, D. 44.

         II. Standard of Review

         Summary judgment is appropriate where there is no genuine dispute as to any material fact and the undisputed facts establish that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). A genuine dispute of material fact occurs when the factual evidence “is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party carries the burden of establishing the “absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law.” Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). If the movant satisfies this burden, the non-moving party may not merely refer to allegations or denials in its pleadings. Anderson, 477 U.S. at 256. Instead, it “must, with respect to each issue on which [it] would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in her favor.” Borges ex rel. S.M.B.W. v. Serrano- Isern, 605 F.3d 1, 5 (1st Cir. 2010). “As a general rule, this requires the production of evidence that is ‘ significant[ly] probative.'” Id. (quoting Anderson, 477 U.S. at 249) (alteration in original). The Court must “view the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009).

         III. Factual Background

         A. Tisbury Towing

         The following facts are undisputed unless otherwise noted. Tisbury Towing is a marine transportation company and is regulated by the Massachusetts State Implementation Plan (“SIP”).[2]310 C.M.R. § 7.00; D. 41-2 ¶¶ 4-5; D. 44-3 ¶¶ 4-5. For at least twenty-five years, Tisbury Towing has owned a single hull barge called the Rando 200. D. 41-2 ¶ 6; D. 44-3 ¶ 6; D. 44-3 at n.1. Under the SIP, the Rando 200 qualifies as a “marine tank vessel, ” D. 41-2 ¶ 6; D. 44-3 ¶ 6, defined as “any marine vessel [] capable of carrying liquid bulk cargo in tanks, ” 310 C.M.R. § 7.00. Until December 31, 2015, the Rando 200 was used to transport gasoline from the Tisbury Towing pier in New Bedford to Martha's Vineyard. D. 41-2 ¶ 7; D. 44-3 ¶ 7. Because the Rando 200 transported “organic liquids, ” Tisbury Towing was subjected to the “Marine Volatile Organic Liquid Transfer” regulation, pursuant to the SIP, commencing from its 2000 approval until December 2015, when its' operation ceased. D. 41-2 ¶ 8; see 310 C.M.R. § 7.24(8)(a). Under this regulation, no person may load a marine tank vessel unless it is “vapor tight” or is loaded at less than atmospheric pressure. 310 C.M.R. § 7.24(8)(e)(1). Here, the transfer at issue could not be done at less than atmospheric pressure[3] so Tisbury Towing's compliance with the regulation turns upon whether the “vapor tight” condition was met.

         On November 8, 2011, gasoline was transferred from a tanker trunk into the Rando 200. D. 41-2 ¶ 9; D. 44-3 ¶ 9. Tisbury Towing asserts that this transfer was a “planned test of the barge, Rando 200, for the purpose of complying with all the applicable regulations.” D. 44-3 ¶ 9. Daniel Gavin (“Inspector Gavin”) and Steven Risi (“Inspector Risi”) from the Massachusetts Department of Environmental Protection “(MassDEP”), William Osbahr (“Inspector Osbahr”) and Michael Looney from the Environmental Protection Agency (“EPA”), Raymond Colicci (“Colicci”) and Nate Pierce from the United States Coast Guard (“Coast Guard”) and Captain Paul Bangs (“Captain Bangs”), captain of the Rando 200 at Tisbury Towing observed this loading event. D. 41-2 ¶ 9; D. 44-3 ¶ 9. This loading event revealed that the Rando 200 was not “vapor tight through any of the three available methods set forth in the SIP.” D. 41-2 ¶ 10; D. 44-3 ¶ 10; 310 C.M.R. § 7.24(8)(e)(2).[4] That is, Tisbury Towing neither provided documentation of a vapor-tightness pressure test or vapor-tightness leak test conducted in the 12 months prior to the loading event nor conducted a vapor-tightness leak test during the event. D. 44-3 ¶ 10. Moreover, during the loading event, “EPA inspector [] Osbahr and MassDEP inspector [] Gavin (“Inspector Gavin”) heard an audible hiss, indicating the presence of a leak, from a pressure vacuum valve.” D. 41-2 ¶ 15; D. 44-3 ¶ 15. Both Captain Bangs and Inspector Obahr smelled gasoline, indicative of a vapor leak. D. 41-2 ¶ 16; D. 44-3 ¶ 16. With a device called a Flame Ionization Detector, [5] EPA Inspector Obahr confirmed volatile organic compound (“VOC”) vapors on the Rando 200 that exceeded 10, 000 parts per million (“ppm”) coming from the high velocity pressure vacuum valve. D. 41-2 ¶ 17; D. 44-3 ¶ 17. EPA inspectors also detected and confirmed emissions leaks from the valve using an infrared video camera. D. 41-2 ¶ 18; D. 44-3 ¶ 18. Accordingly, the “inspectors detected and confirmed the presence of a leak through auditory, olfactory, visual and technological means.” D. 41-2 ¶ 19; D. 44-3 ¶ 19. As a result, the Coast Guard issued an order on November 8, 2011 to “make repairs prior to loading further cargo onto the Rando 200.” D. 41-2 ¶ 20; D. 44-3 ¶ 20. Tisbury Towing contends that it complied with this order. D. 44-3 ¶ 20.

         Moreover, Tisbury Towing did not comply with the requirement to submit an Emissions Control Plan to MassDEP within the requisite time frame. 310 C.M.R. § 7.24(8)(f); D. 41-2 ¶ 21; D. 44-3 ¶ 21. An Emission Control Plan is necessary to ensure that a facility like Tisbury Towing's “will not cause or contribute to a condition of air pollution or a violation of any other regulation.” 310 C.M.R. § 7.18(20)(g). Within 180 days of the Rando 200's first entry into service or the effective date of the applicable regulation, whichever is later, Tisbury Towing was required to submit such plan to the MassDEP. 310 C.M.R. § 7.18(20)(a)(1); D. 41-2 ¶ 21; D. 44-3 ¶ 21. Since the Rando 200 had been operating since at least 1992 and the regulation became effective upon the EPA's approval of it on April 11, 2000, Tisbury Towing's plan was due no later than October 8, 2000. D. 41-2 ¶ 21; D. 44-3 ¶ 21. As of November 8, 2011, when the loading event described above occurred, Tisbury Towing still had not submitted this plan. D. 41-2 ¶ 22; D. 44-3 ¶ 22. It submitted a draft Emissions Control Plan to the EPA on June 17, 2014, but this draft failed to comply with the minimum requirements of SIP regulations. D. 41-2 ¶ 24; D. 44-3 ¶ 24. The EPA, MassDEP, Coast Guard and Tisbury Towing subsequently exchanged drafts and comments and Tisbury Towing eventually submitted a revised draft on May 27, 2016, which was approved by MassDEP on April 7, 2017. D. 41-2 ¶¶ 25-26; D. 44-3 ¶¶ 25-26.

         B. R.M. Packer

         1. Material Facts Concerning the Clean Air Act

         R.M. Packer owns and operates a Bulk Fuel Facility (the “Facility”) in Vineyard Haven, also on Martha's Vineyard, where “[g]asoline and other organic liquids are stored in above-ground tanks and disbursed through a loading rack into tanker trucks for distribution.” D. 46-2 ¶ 2; D. 48-3 ¶ 2. Absent air pollution control equipment and practices, the pumping of liquid gasoline into the tanker trucks can displace vapors within the trucks. D. 46-2 ¶ 3; D. 48-3 ¶ 3. These vapors include VOCs and hazardous air pollutants like benzene, toluene and ethylene. D. 46-2 ¶ 4; D. 48-3 ¶ 4. Given the concerns about releasing ozone into the air, 40 C.F.R. §§ 50.9, 50.10, 50.15 and 50.19; D. 46-2 ¶ 4; D. 48-3 ¶ 4, with its potential adverse effects on the respiratory system, the EPA regulates these emissions. D. 46-2 ¶ 4; D. 48-3 ¶ 4. As a result of an EPA administrative action in 2002, R.M. Packer installed emissions control equipment, including a vapor capture system and a secondhand carbon-based Vapor Recovery Unit manufactured by McGill Company. D. 46-2 ¶¶ 8-9; D. 48-3 ¶¶ 8-9. The equipment was installed by Bryer Enterprises and periodically inspected and maintained by Robert Bryer, a principal at Bryer Enterprises. D. 46-2 ¶ 9; D. 48-3 ¶ 9.

         On June 10, 2013, the EPA observed a pressure vacuum relief valve emitting VOC vapors via an infrared video camera, which revealed that R.M. Packer had not collected and disposed of all vapors discharged during the transfer of gasoline. D. 46-2 ¶ 11; D. 48-3 ¶ 11. The pressure vacuum relief valve, when properly functioning and maintained, is designed to “prevent a tank rupture, arising from a high pressure within the system, or an implosion, resulting from a vacuum within the system.” D. 46-2 ¶ 12; D. 48-3 ¶ 12. Neither high pressure nor vacuum conditions were present during the June 10, 2013 inspection thereby indicating that the pressure vacuum relief valve was not functioning properly and had not been properly maintained. Id. Moreover, one of the two carbon beds, used to absorb VOC vapors, appeared to emit more VOCs than the other, suggestive of a possible problem with the equipment. Id. Thomas Levanduski, a technician from John Zink Company, LLC inspected the Facility on July 16, 2013 and wrote a report summarizing his observations. D. 46-2 ¶¶ 14-15; D. 48-3 ¶¶ 14-15. Samples of the carbon were taken then and the results, detailing the issues observed, were subsequently provided to R.M. Packer on August 14, 2013. D. 46-2 ¶ 16; D. 48-3 ¶ 16. Thomas Steiner, an engineer from Zink, performed a follow-up comprehensive evaluation on September 17, 2013. D. 46-2 ¶ 17; D. 48-3 ¶ 17. In a report dated October 31, 2013, Steiner compiled his findings and recommendations. Id.

         Sometime after Steiner's inspection, R.M. Packer's electrician performed some work on its electrical system and valves and R.M. Packer replaced the pressure vacuum relief valves in either late 2014 or 2015. D. 46-2 ¶ 18; D. 48-3 ¶ 18. R.M. Packer hired Timothy Levanduski (brother of Thomas) to reevaluate its Vapor Recovery Unit. Id. Upon completion of this reevaluation on August 4, 2014, Timothy Levanduski provided a two-page list containing the problems he observed. D. 46-2 ¶ 18; D. 48 ¶ 18. Both Steiner and Timothy Levanduski recommended quarterly preventive maintenance, which R.M. Packer did not implement. D. 46-2 ¶ 22; D. 48-3 ¶ 22. On August 7, 2013, the EPA issued an administrative order (the “Testing Order, ”) pursuant to the Clean Air Act, 42 U.S.C. § 7414(a)(1), which required R.M. Packer to conduct an emissions test on the Vapor Recovery Unit within thirty days. D. 46-2 ¶ 21; D. 48-3 ¶ 21. R.M. Packer did not conduct this test until June 26, 2015. Id. R.M. Packer's equipment has now been repaired and its emissions of VOCs are now satisfactory, D. 46-2 ¶ 22; D. 48-3 ¶ 22. The parties dispute, however, that the repairs were prompt and adequate. D. 46-2 ¶ 23; D. 48-3 ¶ 23.

         2. Material Facts Concerning the Clean Water Act

         The Facility, owned by R.M. Packer, includes 188, 190, and 199 Beach Road in Tisbury and lot 34 (an adjacent parcel). D. 46-2 ¶ 38; D. 48-3 ¶ 38. On these properties, R.M. Packer conducts several different industrial operations, which “includes fuel transport and sales, boat repair, and the transport of products over water using barges.” D. 46-2 ¶ 38; D. 48-3 ¶ 38. Performing these activities on-site requires R.M. Packer to store and distribute petroleum products, waste and scrap material, welds, sandblasts and to repair and lubricate engines on the properties. Id.

         According to R.M. Packer's 2015 Stormwater Pollution Prevention Plan (“SWPPP”), its Facility has four outfalls to navigable water. D. 46-2 ¶ 41; D. 48-3 ¶ 41. During the 2008 SWPPP period, however, R.M. Packer failed to “perform quarterly visual inspections or benchmark monitoring of the outfalls” and thus did not submit data to the EPA as required under the 2008 Multi-Section General Permit (“MSGP”) Id. The parties agree that R.M. Packer also did not “perform and document routine inspections and annual comprehensive site evaluations at its Facility, ” and that it further failed to train its employees on stormwater management. D. 46-2 ¶ 42; D. 48-3 ¶ 42. Consequently, the EPA stormwater inspectors visited the Facility on April 1, 2014, and observed and took photographs of paint chips and debris on the ground of its marine railway. D. 46-2 ¶ 43; D. 48-3 ¶ 43. At this railway, boats are “pulled onto the land on a railway track that extends from the land into the water. In this location, vessel hulls were cleaned through a blasting process.” Id. R.M. Packer was required under the 2008 MSGP to implement “Good Housekeeping Measures.” Id. The parties agree that R.M. Packer failed to do so. Id. Moreover, the parties further agree that R.M. Packer failed to “set forth standard operating practices within its 2002 SWPPP, such as prohibiting uncontained blasting and painting during the windy conditions.” D. 46-2 ¶ 43; D. 48-3 ¶ 43. It is undisputed that R.M. Packer also failed to comply with the 2008 MSGP by omitting certain properties R.M. Packer owned from its' 2002 SWAPP. D. 46-2 ¶¶ 44, 46, 48; D. 48-3 ¶¶ 44, 46, 48. These omissions were corrected, in part, in R.M. Packer's 2015 SWPPP by including these parcels in the Facility diagrams as well as other application portions of the 2015 SWPPP. D. 46-2 ¶ 46; D. 48-3 ¶ 46. At the 2014 inspection, the EPA determined that R.M. Packer's “2002 SWPPP was outdated and also did not accurately reflect all industrial activity onsite.” D. 46-2 ¶ 47; D. 48-3 ¶ 47. On July 29, 2014, pursuant to the Clean Water Act, 33 U.S.C. § 1318(a), the EPA sent R.M. Packer a request for information relating to its stormwater practices (“Section 308 Request”). D. 46-2 ¶ 49; D. 48-3 ¶ 49. Although a response was due within thirty days, R.M. Packer did not submit a response until March 25, 2016. D. 46-2 ¶ 51; D. 48-3 ¶ 51.

         IV. Procedural History

         On April 21, 2016, USA instituted this action against the Defendants seeking civil penalties and injunctive relief. D. 1 in 16-10769; D. 1 in 16-10767. In the amended complaint, USA asserted claims under the Clean Air Act against Tisbury Towing for “failure to conduct a loading event from a marine tank vessel in a vapor tight manner” (“Claim 1”) and failure to submit an emission control plan (“Claim 2”). D. 33 in 16-10769. Against R.M. Packer, the USA asserts claims under the Clean Air Act for failure to operate in a manner consistent with safety and good air pollution control practices (“Claim 1”), failure to timely submit an initial notification (“Claim 2”), failure to timely submit notification of compliance status (“Claim 3”), failure to conduct monthly leak inspections and maintain records (“Claim 4”), failure to collect and dispose of discharged vapor (“Claim 5”), failure to properly maintain and operate the vapor recovery unit (“Claim 6”), failure to comply with and an EPA issued testing order (“Claim 7”), and claims under the Clean Water Act for failure to perform effluent benchmark monitoring, outfall inspections, facility inspections, site evaluations and employee training (“Claim 8”), failure to minimize discharges related to blasting and painting into receiving waters (“Claim 9”), failure ...


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