Facts v. City of St. Louis, Mo.

• Decision Date: 21 July 2009
• Docket Number: Case No. 4:05-CV-719 (CEJ).
• Parties: FAMILIES FOR ASBESTOS COMPLIANCE TESTING AND SAFETY, Plaintiff, v. CITY OF ST. LOUIS, MISSOURI, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

638 F.Supp.2d 1117

FAMILIES FOR ASBESTOS COMPLIANCE TESTING AND SAFETY, Plaintiff, v. CITY OF ST. LOUIS, MISSOURI, Defendant.

Case No. 4:05-CV-719 (CEJ).

United States District Court, E.D. Missouri, Eastern Division.

July 21, 2009.

Bruce A. Morrison, Marc S. Wallis, Sr., Mark I. Bronson, Newman and Bronson, St. Louis, MO, James M. Hecker, Public Justice, Washington, DC, Richard C. Miller, Monsees and Miller, Kansas City, MO, Scott L. Frost, Waters and Kraus, LLP, Dallas, TX, for Plaintiff.

John F. Cowling, Scott K.G. Kozak, Armstrong Teasdale, LLP, St. Louis, MO, for Defendant.

MEMORANDUM AND ORDER

CAROL E. JACKSON, District Judge.

This matter is before the Court for determination of civil penalties and injunctive relief following a bench trial on plaintiff's claim based on the Clean Air Act, 42 U.S.C. § 7604.¹ Plaintiff asks the Court to impose a civil penalty of $2,732,500 and to order the defendant to implement a beneficial mitigation project. Defendant contends that (1) plaintiff lacks standing because it cannot show that its injuries will be redressed by a favorable decision; (2) there were no violations upon which penalties can be assessed because the City immediately stopped demolitions when approval for the wet demolition method was revoked; (3) even if violations occurred, no penalty should be assessed under the factors enumerated in the relevant statute, 42 U.S.C. § 7413(e)(1); and (4) plaintiff has failed to put forward evidence to establish that the soil testing program it seeks is necessary or appropriate.

On September 15, 2008, 2008 WL 4279569, the Court granted partial summary judgment in favor of plaintiff Families for Asbestos Compliance, Testing and Safety (FACTS) after finding that the defendant City of St. Louis had committed 99 violations of the National Emission Standard for Hazardous Air Pollutants (NESHAP) for asbestos. On February 17 and 18, 2009, the Court received testimony and evidence at a bench trial on plaintiff's claims for civil penalties and injunctive relief under 42 U.S.C. § 7413(b).

I. Background

This lawsuit arises from the City's demolition of approximately 2,000 residential and commercial structures to make way for a new runway at Lambert St. Louis International Airport. The airport is owned and operated by the City. The demolished buildings were located in Bridgeton, Missouri. Many of the buildings contained asbestos in floor tiles, drywall joint compound, and sprayed-on ceiling material.

The demolition of buildings containing asbestos is governed by regulations (the asbestos NESHAP) promulgated by the Environmental Protection Agency (EPA). The EPA delegated the authority to administer the asbestos NESHAP to the State of Missouri. The State, through the Missouri Department of Natural Resources (MDNR), in turn delegated its authority to the St. Louis County Department of Health (County Health Department) with respect to demolitions occurring at the airport, which is located in St. Louis County.

The City was required to obtain a permit from the County Health Department in advance of each demolition. Included with the permit applications were reports from environmental consultants who tested samples of the drywall joint compound and ceiling material. If the samples contained greater than one percent asbestos, the County Health Department deemed the entire wall and ceiling—including the drywall, adjacent framing, and insulation—to be cross-contaminated. There was uncontroverted testimony that, under this circumstance, the County Health Department required the City to leave the asbestos-containing materials in place and use a wet demolition method to remove the entire structure.²

Demolitions began in October 1999. On November 13, 2002, the MDNR wrote to the EPA to inquire whether the wet demolition method complied with NESHAP requirements. The EPA response, dated November 14, 2002, stated that properly completed wet demolitions would meet the intent of the asbestos NESHAP. Two months later, however, the EPA reversed itself and, in a letter written on January 22, 2003, stated that the County Health Department's wet-demolition policy was not consistent with the NESHAP. The County Health Department stopped issuing permits and demolitions ceased. The wet demolition method had already been used to remove 191 residences.

Thereafter, the Airport sought the EPA's approval of the wet demolition method. After extensive negotiations,³ an Administrative Order of Consent (AOC) was entered into, effective May 1, 2003, that authorized the County Health Department to issue permits for wet demolitions. Sixty-four residential structures were removed under the AOC. On June 11, 2004, the City, the EPA, and the County Health Department agreed to suspend wet demolitions.

No further wet demolitions were done after the June 2004 agreement. Additionally, there are no remaining structures to be demolished in connection with the Airport Expansion Project.

The City conducted air monitoring at 36 wet-demolition sites. The monitoring was not required by any of the regulatory agencies but was undertaken as a quality control measure in order to ensure that the approved demolition method was being implemented by the several different contractors. Air samples were taken upwind and downwind from the site and compared using Phase Contrast Microscopy and Transmission Electron Microscopy. The data generated from the samples were subsequently provided to the EPA's Office of Research and Development (ORD) for evaluation.

The ORD released a report on August 6, 2004. Subject to some caveats,⁴ the authors concluded that there was no indication that the wet-demolition method caused the release of asbestos fibers. R. Wilmoth et al. St. Louis Airport Expansion Demolitions Data Evaluation. (Pl. Tr. Ex. 30). A review of the data indicated no statistically significant difference between the up—and down-wind samples and, thus, no indication that the wet demolition method resulted in the release of asbestos. The authors concluded that the wet demolition process "appeared effective on average in the control of large-fiber release." Id. at 24. Given the caveats, however, the authors stated that "no conclusions can be confidently drawn on the effectiveness of the wetting process for individual buildings." Id. (emphasis added).

William L. Dyson, Ph.D., an industrial hygienist, testified at trial as an expert on exposure and disease risk assessment. The asbestos in the homes demolished using the wet method was of the chrysotile type, which has the lowest exposure risk for the disease mesothelioma. Dr. Dyson testified that the critical element in determining risk is the "exposure dose," which is a function of the exposure duration and exposure intensity. In this case, the exposure duration was four to six hours per demolition. The air sampling data established that the exposure intensity was quite low.⁵ These data were consistent with recently-published findings regarding the release of asbestos fibers during demolition. He calculated that the exposure dose was several orders of magnitude less than the lowest exposure dose associated with risk of disease. In Dr. Dyson's opinion, the disease risk associated with asbestos exposure as a result of the demolitions in the airport expansion zone is less than one in one million and probably in the order of one in ten million.⁶ By comparison, he testified, the lifetime risk of death from driving to work is about two in one thousand and the lifetime risk of being hit by lightning is about seven in ten thousand.

Dr. Dyson testified that there was also no risk to health presented from asbestos potentially left in the soil following wet demolitions. First, asbestos fiber in soil has to become airborne and be inhaled in order to pose a health risk. The demolition procedure was concluded with visual inspection to remove any visible asbestos. The demolition site was then graded and planted with a ground cover. These steps would significantly reduce the amount of asbestos left in the soil. Second, asbestos fibers become tightly bound with the soil and are unlikely to become airborne; with time, the asbestos fibers leach away. Digging in the soil presented no concerns because the concentrations of asbestos were so low that any emissions would be harmless. With respect to plaintiff's request for soil testing, Dr. Dyson testified that, at present, there are no criteria for determining when soil testing should be conducted and no criteria for determining whether remediation of soil has been achieved. Dr. Dyson opined that only minute amounts of asbestos would have remained in the soil at the demolition sites. He further opined that there is no significant asbestos exposure risk to people walking near the airport expansion area, because there were no significant releases of asbestos during the demolition.

Plaintiffs did not present expert testimony with respect to disease risk associated with the wet demolitions. Two of plaintiff's members, who lived near buildings that were wet-demolished, testified that during the demolitions they noticed an increased amount of dust in their homes. There was no evidence as to whether this dust contained asbestos or, if so, to what level. Audrey Russell moved from the airport expansion area in June 2006, but she returns to the neighborhood twice a month to walk her dogs in a park adjacent to an area where wet demolitions were conducted. Carole Donnelly moved from the expansion area in June 2005, but has returned there 25-30 times since then. She testified that she would not use the park until it was cleaned up because she considers it unsafe.

II. Discussion

In a post-trial memorandum, defendant contends that the plaintiff lacks standing to seek civil penalties and injunctive relief under the Clean Air Act.⁷ Plaintiff suggests that defendant should not be allowed to assert this argument at this late stage of the proceedings. However, the...