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United States v. Owens Contracting Servs., Inc.

ELR Citation: 26 ELR 20650
Nos. No. 93-CV-10309-BC, 884 F. Supp. 1095/(E.D. Mich., 12/14/1994)

The court holds that a demolition contractor that allegedly failed to issue a notice of intent to demolish a condemned garage, to wet asbestos during the demolition, and to prevent the discharge of visible emissions of asbestos, did not violate the 1988 asbestos national emissions standards for hazardous air pollutants (NESHAP). The court holds that only the notice claim could survive a motion for summary judgment, because it does not require proof of a minimum amount of friable asbestos whereas the work practice violation, for failure to wet asbestos, cannot proceed absent proof that over 15 square meters of friable asbestos was present during the demolition. The court holds that the emissions discharge claim also cannot survive under any circumstance, because it is excluded by the NESHAP regulation governing court-ordered demolitions. The court next holds that the garage which was used to store abandoned property and items removed from a fire that destroyed the adjacent apartment building, was not used for commercial purposes and, therefore, was not a facility under the NESHAP. The court holds that the garage siding was not friable asbestos material under the 1988 NESHAP, because it was not capable of being crushed by hand pressure in its virgin state. The government's interpretation of the 1988 NESHAP, which in effect attempts to apply retroactively the current NESHAP regulations for friable asbestos, is not soundly reasoned or supportable and, thus, is plainly erroneous and inconsistent with the 1988 regulations. The court also holds that there is insufficient proof of an emissions violation. There was no evidence that any visible emissions actually contained asbestos, and under the 1988 NESHAP, the presence of asbestos emissions cannot be implied from the demolition of asbestos-containing material.

Counsel for Plaintiff
David S. Christensen
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
James P. Boardman
Purcell, Tunison & Boardman
6225 Gratiot St., P.O. Box 6669, Saginaw MI 48608
(517) 793-5891