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United States v. Dell'Aquilla

Citation: 28 ELR 21525
(08/05/1998)

The court remands a district court decision holding a project manager and a construction company liable for violations of the asbestos national emission standards for hazardous air pollutants (NESHAPs) during the demolition of buildings at a development site. The court first holds that the manager and the company were operators under the Clean Air Act (CAA). Although they are not owners of the property where the violations occurred, it is axiomatic that a nonowner can still be liable as an operator. The control and supervision that the manager and company exercised over the project was more than sufficient to support the district court's conclusion that they were operators under the CAA. But the court next holds that the district court erred in assuming that the manager and the company could be held liable for each violation for every day until September 14, 1998, which is the date that the demolition contract terminated. The record is unclear as to when demolition was completed. Although it may have continued until September 14, 1998, there is nothing to establish that its duration was coterminous with the agreement. Similarly, although the company clearly functioned as an operator, the record fails to establish how long it functioned in that capacity. The court the rejects the manager's and the company's challenge as to six violations concerning notice to the U.S. Environmental Protection Agency because it was based on the assertion that they were not owners or operators.

The court also holds that the manager and the company waived much of their challenge to the sufficiency of the government's evidence to support 34 demolition-related NESHAP violations and 18 disposal-related violations. However, the court then holds that the government did not establish that three visible emissions contained asbestos, and summary judgmentas to those violations was inappropriate. There is no indication that two test samples containing asbestos were taken from settled emissions, and the evidence does not even establish that the samples were taken in the vicinity of the visual emissions. Although the government inspector's affidavit is certainly consistent with the conclusion that the visible emissions contained asbestos, summary judgment requires more than a possibility or even a probability that it was asbestos.

Last, the court holds that the manager's and the company's financial condition was relevant to a determination of the appropriate penalty, and the district court abused its discretion in refusing to consider it. The district court had a legal obligation to consider each of the mitigating factors set forth in the CAA. Here, the district court's refusal to consider their bankruptcy is inconsistent with that mandate.

Counsel for Appellee
Susan Handler-Menahem, Ass't U.S. Attorney
U.S. Attorney's Office
Federal Bldg.
970 Broad St., 7th Fl., Newark NJ 07102
(973) 645-2700

Counsel for Appellants
Charles E. Erway III
Porzio, Bromberg & Newman
163 Madison Ave., Morristown NJ 07962
(973) 538-4006

Before Nygaard and Weis, JJ.