United States v. Ben's Truck and Equipment, Inc.

No. S-84-1672-MLS (E.D. Cal. May 12, 1986)

The court holds that strict liability applies to civil violations of the Clean Air Act (CAA) and the national emission standard for hazardous air pollutants (NESHAP) for asbestos. The language and legislative history of the CAA, as well as the case law interpreting the statute and the emissions standards promulgated under it, support such a holding. To prove that defendant, who conducted a demolition operation that involved asbestos-containing material, is liable under the CAA, plaintiff must show only that the minimal threshold requirements of the asbestos NESHAP have been satisfied and that the specific criteria in the NESHAP have been violated. After holding that all of the substantive requirements of the NESHAP for asbestos were applicable to defendant's operation, the court holds that defendant violated 40 CFR § 61.146 by failing to notify EPA of its intention to conduct the demolition. The court then holds that defendant violated 40 CFR § 61.147(e) by its failure to keep all asbestos-containing material wet until packaging. The court also holdsthat plaintiff need not show that visible emissions of asbestos occurred in order to prove that defendant violated 40 CFR § 61.147(d). Liability under this regulatory provision stems from the failure to wet friable asbestos material adequately rather than from the release of visible emissions. The court next holds that 40 CFR § 61.152(b) prohibits visible asbestos emissions at a demolition operation during the collection and packaging of asbestos material, but does not prohibit visible emissions if a disposal method specified in the regulation is used. Finally, the court holds that the owner of the demolition site was not solely responsible for proper disposal of the asbestos material.

Counsel for Plaintiff
Joseph E. Maloney, U.S. Attorney
3305 Federal Bldg., 650 Capitol Mall, Sacramento CA 95814
(916) 440-2331

Counsel for Defendants
Joseph Gazzigli
1900 Gold St., Reading CA 96001
(916) 241-6900

[17 ELR 20777]

Schwartz, J.:

Order on Motion for Summary Judgment

This action was brought by the United States for civil penalties and injunctive relief pursuant to Section 113 of the Clean Air Act ("Act"), 42 U.S.C. § 7413, for violations of Sections 112 and 114 of the Act, 42 U.S.C. §§ 7412 and 7414, and the National Emission Standard for Hazardous Air Pollutants ("NESHAP") for asbestos, 40 C.F.R. Part 61, Subpart M. This action arises from a demolition operation conducted at P&M Cedar Products, Inc. ("P&M") located in McCloud, California. Named as defendants in this case were P&M, the owner of the facility, and Ben's Truck and Equipment, Inc. ("Ben's Truck"), the demolition contractor.¹ in particular, defendants are charged with: (1) failure to notify EPA prior to the commencement of the demolition in violation of 40 C.F.R. § 61.146; (2) failure to keep asbestos containing material wet until disposal in violation of 40 C.F.R. § 61.147(e); (3) failure to adequately wet friable asbestos material during stripping in violation of 40 C.F.R. § 61.147(d); (4) failure to properly collect and package asbestos containing material in violation of 40 C.F.R. § 61.152(b); and (5) failure to dispose all asbestos containing material at an acceptable site in violation of 40 C.F.R. § 61.152(a).

On February 21, 1986, there came to be heard by this Court, Plaintiff's Motion for Summary Judgment Against Ben's Truck on the issue of liability. After having considered the submissions of the parties and the arguments of counsel, and reviewing the record in a light most favorable to the defendant, the Court has determined that there are no issues of material fact as to claims 1 and 2 and that summary judgment should be granted in Plaintiff's favor as to those claims. The Court finds that there are issues of fact as to claims 3, 4 and 5 above, and therefore, denies summary judgment as to those claims.

I. Standard of Review

It is well established that summary judgment is appropriate where there are no genuine issues of material fact. Commodity Futures Trading Commission v. Savage, 611 F.2d 270, 282 (9th Cir. 1979); British Airways Board v. The Boeing Co., 585 F.2d 946, 950 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). It is equally well recognized that the evidence must be viewed in a light most favorable to the opposing party. Neely v. St. Paul Fire and Marine Insurance Company, 584 F.2d 341, 343 (9th Cir. 1978); Mendelsohn v. Capital Underwriters, Inc., 490 F. Supp. 1069, 1081 (N.D. Calif. 1979).

After a review of the submissions of the parties viewed most favorably for the defendant, this Court holds that summary judgment is appropriate as to the two of Plaintiff's claims involving 40 C.F.R. §§ 61.146 and 61.147(e). The Court's specific findings are set forth in the findings of fact and conclusions of law that follow.

II. Findings of Fact

The Court finds that there is no dispute as to the following facts. These facts are established for purposes of the trial in this matter.

1. Plaintiff is the United States of America, acting on behalf of the Administrator of the United States Environmental Protection Agency ("EPA").

2. Defendant Ben's Truck and Equipment, Inc. ("Ben's [17 ELR 20778] Truck") is a trucking and demolition contractor incorporated under the laws of the State of California with its principal place of business in Red Bluff, California.

3. P&M Cedar Products, Inc. ("P&M") owns and operates a saw mill and planing mill on Mill Road in McCloud, California.

4. P&M's Mill Road property is, and was in July 1984, located across Mill Road from private residences.

5. Ben's Truck contracted with P&M on June 11, 1983, to conduct a demolition operation at P&M's Mill Road facility.

6. Ben's Truck conducted a demolition operation at P&M from at least May through August 1984.

7. The facilities demolished by Ben's Truck at P&M's Mill Road property contained at least 260 linear feet of friable asbestos material on pipes.

8. Ben's Truck removed asbestos containing material during the demolition operation at P&M from at least March through August 1984.

9. By on or about July 23 and 24, 1984, Ben's Truck had removed pipes wrapped in friable asbestos material from the boiler room and other facilities at P&M by lifting them out with a crane.

10. Ben's Truck stripped the asbestos from some of the pipes removed during the demolition at P&M by using a Caterpillar tractor.

11. Ben's Truck did not use a local exhaust ventilation and collection system when it stripped friable asbestos material from pipes associated with the process boiler and other facilities demolished at P&M's Mill Road property.

12. Ben's Truck failed to provide written notice to the EPA of its intention to demolish the boiler room and other facilities at P&M's Mill Road property prior to commencement of such demolition.

13. On or about July 26, 1984, Kenneth Corbin of the Siskiyou County Air Pollution Control District ("SCAPCD") conducted an inspection of the demolition operation at P&M.

14. Kurt Sale, the supervisor at the P&M demolition since April 1984 and the son of the president of Ben's Truck, accompanied Mr. Corbin on his inspection of P&M on July 26, 1984.

15. During his inspection on July 26, 1984, Mr. Corbin was shown a pile of approximately 500 feet of pipe in sections, some of which had pieces of asbestos attached to them.

16. During his inspection on July 26, 1984, Mr. Corbin was shown a pile of dirt mixed with asbestos approximately 10 feet by 5 feet. The pipes and the pile of dirt containing asbestos were exposed to the air and dry.

17. During his inspection on July 26, 1984, Mr. Corbin was shown several plastic bags containing asbestos-containing material. At least two of the bags were broken with some of the material spilled on the ground.

18. The bags used by Ben's Truck to package the asbestos-containing material from the demolition at P&M's Mill Road property were not labeled with the following legend or one substantially similar:

Contains Asbestos

Avoid Opening Or

Breaking Container

Breathing Asbestos is Hazardous to Your Health

19. On or about July 30, 1984, Mr. Corbin and Dean Saito of the California Air Resources Board conducted an inspection of the demolition operation at P&M.

20. During their inspection on July 30, 1984, Corbin and Saito observed a pile of more than 260 linear feet of pipe in sections, some of which had pieces of asbestos attached to them.

21. During the inspection on July 30, 1984, Corbin and Saito observed that the soil in the area of the pipes contained scattered pieces of asbestos.

22. The pipes and the soil containing asbestos in the area of the pipes observed on July 30, 1984, were dry and dusty.

23. There were no asbestos warning signs posted at P&M in the area of the pipes and dirt containing asbestos on July 30, 1984.

24. Most, but not all, of the asbestos containing material was removed from P&M's Mill Road property by September 4, 1984.

25. The P&M site did not have a fence or natural barrier to prevent public access to the area contaminated with asbestos.

III. Conclusions of Law

A. The Act and Asbestos NESHAP are Strict Liability Provisions

This action was brought pursuant to the authority in the Clean Air Act. The purpose of the Act is "to protect and enhance the quality of the nation's air resources." 42 U.S.C. § 7401(b)(1). To that end, Section 112 of the Act, 42 U.S.C. § 7412, authorizes EPA to publish a list of hazardous air pollutants; to prescribe emission standards for those pollutants in the form of NESHAPs; and prohibits the emission of any pollutant to which a NESHAP applies in violation of the NESHAP emission standard.² The deleterious effects of asbestos exposure to humans are now well known. See, e.g., 38 Fed. Reg. 8820. Asbestos was listed as a hazardous air pollutant in 1971 (36 Fed. Reg. 5931); a NESHAP for asbestos is currently promulgated at 40 C.F.R. Part 61, Subpart M (1984).

This Court holds that the Act and the asbestos NESHAP provide strict liability for civil violations of their provisions. This reading is supported by the language of the Act, the legislative history of the Act and cases construing the Act and emission standards promulgated thereunder.³ Strict liability is essential to meet the purpose of the Act to protect and improve the quality of the nation's air. This Court rejects defendant's contention that the civil penalty provisions of the Act are quasi-criminal in nature requiring a "knowing" violation to find liability. Therefore, to prove the defendant is liable under the Act, Plaintiff must establish only that the minimal threshold requirements of the asbestos NESHAP have been met (e.g., defendant is the owner or operator of a stationary source; and the demolition includes asbestos containing material on pipes or components) and that the specific criteria in the NESHAP have not been met.

B. Ben's Truck is the Owner or Operator of a Stationary Source

Defendant concedes that as the demolition contractor at P&M, it is an "owner or operator" of a "stationary source" as those terms are defined in Sections 111(a)(3), 111(a)(5) and 112(a)(3) of the Act, 42 U.S.C. § 7411(a)(3), 7411(a)(5) and 7412(a)(3), and 40 C.F.R. §§ 61.02 and 61.141.⁴ Defendant also concedes, as it must, that since the demolition involved asbestos containing material, it was within the regulatory scope of the asbestos NESHAP.

Furthermore, this Court finds that there is no genuine dispute that the demolition at P&M included at least 260 linear feet of asbestos on pipes. As a consequence, this Court also finds that all of the substantive requirements of the asbestos NESHAP at issue in this action were applicable to the demolition conducted by the defendant at P&M.

C. Notice Violation

The Complaint alleges that Ben's Truck failed to provide EPA with prior notice of its intention to conduct the demolition at P&M in violation of Sections 112(c) and 114(a)(1)(B) of the Act, 42 U.S.C. §§ 7412(c) and 7414(a)(1)(B), and 40 C.F.R. § 61.146. Notice is necessary for EPA to ensure that proper demolition procedures are followed. This provision of the NESHAP is thus important to EPA's regulatory functions.

As the demolition contractor at P&M, defendant was an owner or operator of a stationary source under the asbestos NESHAP, required to follow the notice requirements of 40 C.F.R. § 61.146. Defendant admits that it did not provide advance notice to EPA of its intention to conduct the demolition. There are thus no triable issues of fact. Accordingly, summary judgment as to liability is granted as to this claim.

D. Failure To Keep Asbestos Wet Until Disposal

Plaintiff alleges that defendant failed to keep all asbestos containing material that was removed from the pipes at the P&M facility wet until disposal in violation of Sections 112(c) and 112(e) of the [17 ELR 20779] Act, 42 U.S.C. §§ 7412(c) and 7412(e), and 40 C.F.R. § 61.147(e). As previously stated, the Court finds that there is no dispute that the demolition involved more than 260 linear feet of asbestos on pipes subjecting defendant to the substantive provisions of the asbestos NESHAP. There also is no dispute that on July 26 and 30, 1984, inspectors observed a pile of pipes at the P&M demolition, some of which had asbestos still attached to them, and asbestos scattered in the soil in the vicinity of the pipes. The pipes and soil were dry and dusty. On July 26, 1984, an inspector also observed a pile of dry dirt mixed with asbestos approximately 10 feet by 5 feet in size.

The purpose of 40 C.F.R. § 61.147(e), is to prevent asbestos containing material from drying out before it can be packaged for disposal. The undisputed facts demonstrate defendant's failure to keep all asbestos containing material wet until packaging and therefore Ben's Truck has violated this regulation. Accordingly, summary judgment on liability is granted as to this claim.

E. Adequate Wetting During Stripping

The Complaint alleges that Ben's Truck failed to "adequately" wet friable asbestos material during its stripping operations at P&M in violation of Sections 112(c) and 112(e) of the Act, 42 U.S.C. §§ 7412(c) and 7412(e), and 40 C.F.R. § 61.147(d). This Court holds that the government need not prove that visible emissions of asbestos occurred in order to prove a violation of 40 C.F.R. § 61.147(d). It is the failure to follow the work practice to wet adequately rather than the release of visible emissions which creates liability. The Court, however, finds that there is a triable issue of fact as to whether the defendant "adequately" wet the friable asbestos material during its stripping operations. Since such a finding is necessary for there to be a violation, summary judgment as to this claim is denied.

F. Improper Collection and Packaging

The Complaint alleges that Ben's Truck discharged visible emissions of asbestos during the collection and processing of asbestos containing material at P&M and did not follow a specified alternative disposal method in violation of Sections 112(c) and 112(e) of the Act, 42 U.S.C. §§ 9612(c) and 9612(e), and 40 C.F.R. § 61.152(b). This Court accepts Plaintiff's recommendation to read 40 C.F.R. § 61.152(b), as prohibiting visible emissions at a demolition operation during collection and packaging of asbestos containing material, but excusing such visible emissions if a disposal method specified in the regulation is used.

Defendant concedes that the specific acceptable disposal method it selected (i.e. treating asbestos containing waste material with water) was not followed in that Ben's Truck failed to use warning labels on its containers and that two of the container bags were broken. Thus, if visible emissions were discharged during collection and processing, Ben's Truck would have violated the Act and asbestos NESHAP. However, this Court finds that there is a triable issue of fact as to whether visible emissions, as defined in 40 C.F.R. § 61.141, occurred. Accordingly, summary judgment as to this claim must be denied.

G. Failure to Dispose

The Complaint alleges that defendant failed to deposit all asbestos containing material from the demolition at P&M at an approved site in violation of Sections 112(c) and 112(e) of the Act, 42 U.S.C. §§ 7412(c) and 7412(e), and 40 C.F.R. § 61.152(a). Plaintiff contends that when defendant completed its demolition in September 1984, there wasstill asbestos remaining at the P&M site and since P&M is not an acceptable disposal site, this was a violation of the Act and asbestos NESHAP.

Defendant concedes that P&M was not an acceptable waste site. The Court rejects defendant's contention that it was P&M's sole responsibility as the owner of the site to see that all asbestos was properly disposed.

When there is any serious question as to whether there is a triable issue, it is a court's duty to deny summary judgment. In this instance, the Court finds that the defendant has raised, though just barely, a triable issue of fact as to when all asbestos material was properly disposed. Since a trial is necessary as to the other two claims for which summary judgment has been denied as well as the amount of civil penalties to be imposed, there is no prejudice to the Plaintiff in requiring a trial as to this claim. Therefore, summary judgment is denied as to the disposal claim.

Consistent with the foregoing,

1. Summary judgment on liability as to the alleged violation of 40 C.F.R. § 61.146, is GRANTED in favor of the Plaintiff;

2. Summary judgment on liability as to the alleged violations of 40 C.F.R. § 61.147(e), is GRANTED in favor of the Plaintiff;

3. Summary judgment on liability as to the alleged violations of 40 C.F.R. § 61.147(d), is DENIED;

4. Summary judgment on liability as to the alleged violations of 40 C.F.R. § 61.152(b), is DENIED; and

5. Summary judgment on liability as to the alleged violations of 40 C.F.R. § 61.152(a), is DENIED.

IT IS SO ORDERED.

1. On January 21, 1986, a Consent Decree between Plaintiff and defendant P&M became effective. Accordingly, Ben's Truck is the only remaining defendant who contest the United States' claims.

2. Section 112(e)(5), 42 U.S.C. § 7412(e)(5), provides that any work practice standard promulgated as part of a NESHAP "shall be treated as an emission standard."

3. H.R. Rept. No. 94-1175, 94th Cong., 2d Sess. 52-53 (1976); and see, e.g., United States v. Calaveras Asbestos, Ltd., Civ. No. F-84-650 (E.D. Calif. October 30, 1985); United States v. Harford Sands, Inc., Civ. No. Y-83-896 [14 ELR 20337] (D. Md. December 13, 1983); Friends of the Earth v. Potomac Electric Power Co., 419 F. Supp. 528 [7 ELR 20090] (D.D.C. 1976).

4. Defendant does not and cannot dispute that, as the site of a demolition operation including asbestos containing material, P&M is a stationary source, as defined in Sections 111(a)(3) and 112(a)(3) of the Act, 42 U.S.C. §§ 7411(a)(3) and 7412(a)(3).