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United States v. Tzavah Urban Renewal Corp.

Citation: 19 ELR 20351
No. No. 88-3647, 696 F. Supp. 1013/(D.N.J., 10/11/1988)

The court issues a Clean Air Act § 113 order requiring the owners and operators of a hotel under renovation to clean up asbestos debris. The court first holds that plaintiff's motion for injunctive relief is not moot. The owners' and operators' long history of noncompliance and recent Environmental Protection Agency inspections showing continuing danger reveal a risk of continued and recurring violations. Moreover, even though there is no ongoing renovation work, once asbestos has been identified it must be disposed of properly. The court next holds that the asbestos regulations at 40 C.F.R. § 61.152, requiring that asbestos be deposited at waste disposal sites and controlled to prevent visible emissions during collection, apply to all disposal sites, including temporary disposal sites at the renovation scene. The court holds that injunctive relief is appropriate in this case. It is very likely that the government will succeed on the merits in imposing penalties on the defendants. As a regulatory statute, the Clean Air Act and its asbestos regulations employ a strict liability standard and no mens rea is required. Moreover, the regulations make asbestos emissions an ultrahazardous activity, and so strict liability applies. Liability under the Clean Air Act extends to "owners and operators" broadly defined, including those who actively supervise work at the site. The courtholds that the asbestos emissions are a threat to public health that very well may be irremedial, since asbestos is particularly toxic. There is more than a mere possibility that defendants would continue to violate administrative orders to stop their asbestos emissions, and the imposition of civil penalties would not compensate victims exposed to asbestos as a result of continued emissions. Defendants say they will comply with asbestos requirements anyway, so the imposition of injunctive relief does not tilt the balance of hardships in such a way as to make injunctive relief unjust.

Counsel for Plaintiff
Kevin McKenna, Ass't U.S. Attorney
502 Federal Bldg., 970 Broad St., Newark NJ 07102
(201) 621-2700

Counsel for Defendants
Jane M. Hanson, Diana Bordonaro
Porzio, Bromberg & Newman
163 Madison Ave., Morristown NJ 07960-1997
(201) 538-4006