US v. Midwest Suspension and Brake

• Decision Date: 16 June 1993
• Docket Number: No. 91-CV-70141-DT.,91-CV-70141-DT.
• Citation: 824 F. Supp. 713
• Parties: UNITED STATES of America, Plaintiff, v. MIDWEST SUSPENSION AND BRAKE, Defendant.
• Court: U.S. District Court — Western District of Michigan

824 F. Supp. 713

UNITED STATES of America, Plaintiff, v. MIDWEST SUSPENSION AND BRAKE, Defendant.

No. 91-CV-70141-DT.

United States District Court, E.D. Michigan, S.D.

June 16, 1993.

COPYRIGHT MATERIAL OMITTED

Peter E. Jaffe, U.S. Dept. of Justice, Washington, DC, for plaintiff.

Thomas J. Budzynski, Clinton Twp., MI, for defendant.

MEMORANDUM OPINION AND ORDER

ZATKOFF, District Judge.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

This matter is before the Court on the United States of America's ("the government's") civil action against defendant Midwest Suspension and Brake ("defendant" or "Midwest") under § 113 of the Clean Air Act, 42 U.S.C. § 7413,¹ for alleged violations of § 112 of the Clean Air Act, 42 U.S.C. § 7412, the National Emission Standards for Hazardous Air Pollutants for Asbestos, 40 C.F.R. Part 61, Subpart M ("Asbestos NESHAP"), as well as alleged violations of an Administrative Order on Consent ("AO"), which Midwest and the government entered into pursuant to § 113(a)(3) of the Clean Air Act, 42 U.S.C. § 7413(a)(3). In this action, the government seeks civil penalties and injunctive relief against defendant. The Court presided over the bench trial in this matter from April 1, 1993 — April 6, 1993 ("the trial"). Upon the Court's request at the close of the trial, both parties filed post-trial proposed findings of fact and conclusions of law.

During the bench trial, the Court had an opportunity to consider, and did consider, each witness's ability and opportunity to observe the facts and the events to which he and she testified; each witness's memory and manner while testifying; each witness's interest, bias, or prejudice; and the reasonableness of each witness's testimony considered in light of all the evidence admitted. Based upon the testimony produced during the trial, the exhibits admitted into evidence at trial, and the post-trial briefs that the parties have submitted to the Court, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court sets forth below its findings of fact and conclusions of law.

II. FINDINGS OF FACT

Midwest stipulated to the admissibility of all of the government's exhibits in this case (some 139 exhibits plus an additional 35 demonstrative exhibits), save for objections under Rules 401, 402, and 403 of the Federal Rules of Evidence. Accordingly, the Court admitted all of the government's exhibits into evidence. April 1, 1993, Tr. at 32-34. At the beginning of the trial, the government dropped one of its claims for violation against defendant, specifically the claimed violation of June 29, 1988, for an alleged visible emission² to the outside air. April 1, 1993, Tr. at 9.

Midwest is incorporated under the laws of the State of Michigan with its principal place of business located at 3411 West Fort Street, Detroit, Michigan ("the facility" or "Midwest facility"). Stipulation No. 4, Final Pretrial Order of February 8, 1993 ("Stip. No. ___"). As part of its business at the facility, Midwest delines and relines brake shoes and accepts used brake shoes for refurbishing. Stip. Nos. 4 & 24.

Midwest only works on heavy equipment brake shoes, that is, any vehicle from a medium-sized delivery truck on up. Testimony of Mr. Ciupak, April 1, 1993, Tr. at 50. Midwest receives used brake shoes from regular customers, as well as from infrequent customers. Stip. No. 30. Some of the used brake shoes contain asbestos. Stip. No. 32. Midwest inspects the used brake shoes to determine whether the used brake shoes are dimensionally correct to the manufacturer's specifications. Stip. No. 25; Ciupak's deposition at 10.³ Midwest does not inspect, however, the used brake shoes or worn brake block to determine whether they contain asbestos. Stip. No. 32. Midwest is unable to determine the material contained in the used brake shoes or block it receives. Id.

Prior to 1991, Midwest used a deriveting/delining machine ("delining machine") to separate the brake shoe from the brake table. Testimony of Mr. Ciupak, April 1, 1993, Tr. at 51-52. The delining machine gripped the entire brake shoe and rotated it into a plow/blade that was positioned between the table and the brake block. The plow/blade severed the rivets which held the brake shoe to the brake table, allowing the brake block to fall free from the brake table. The angle of the plow/blade was tangent to the brake table so that the plow/blade gouged neither the brake table nor the back of the brake pad. Testimony of Mr. Ciupak, April, 1, 1993, Tr. at 51-52; Testimony of Mr. Lins, April 1, 1993, Tr. at 154; Testimony of Mr. Mauzy, April 2, 1993, Tr. at 315; Government's Exs. 40 & 52.

The delining machine, by forcing its plow/blade between the brake table and the brake pad or lining, caused the brake pad or lining to fracture into small pieces and dust. Testimony of Mr. Ciupak, April 1, 1993, Tr. at 53; Testimony of Mr. Lins, April 1, 1993, Tr. at 154, 160; Testimony of Mr. Mauzy, April 2, 1993, Tr. at 315; Testimony of Mr. Anderson, April 5, 1993, Tr. at 16-17; Government's Ex. 25. If the brake shoe was not correct to specifications, the worn brake pad or lining was removed on the delining machine and the used brake table was broken and scrapped. Stip. No. 26; Mr. Ciupak's Deposition at 10. If the brake shoe was correct to specifications, the worn brake pad or lining was removed on the delining machine. Stip. No. 27; Mr. Ciupak's Deposition at 10, 15-16; Testimony of Mr. Ciupak, April 1, 1993, Tr. at 51-52.

Due to the position of the delining machine's plow/blade, a certain amount of rust and asbestos fiber bundles remained bonded to the brake shoe after the delining machine had severed the brake pad or lining from the brake table. Testimony of Mr. Anderson, April 5, 1993, Tr. at 17. After the brake shoes have gone through the delining machine, the brake shoes are sent to a washer where they are cleaned. Testimony of Mr. Ciupak, April 1, 1993, Tr. at 54.

After the cleaning operation is concluded, the brake shoes are sandblasted.⁴ Mr. Ciupak testified that:

In the sandblaster the shoe is bombarded with high-speed particles to remove rust and bring the shoe back to a nonpainted, non rustic condition. It's bare metal when it comes out. After it comes out of the sandblaster, we put it into a dip tank and dip it in a black rust preventative paint. We allow it to air dry.

. . . . .

Once it's dried, we have a tendency to separate the shoes into common shoes so that we have pallets and dollies filled with shoes that are the same configuration. Those, in turn, are moved over to our relining area where the shoes are examined to make sure that they're still to manufacturer's specification.

. . . . .

Testimony of Mr. Ciupak, April 1, 1993, Tr. at 54-55.

Arnold Anderson testified at trial to the effects that sandblasting has on the brake shoe:

When they the sand particles strike the rust layer on the shoe, the brittle material cannot resist that type of impact and it shatters in the form of very fine particulate, iron dust. The friction materials, asbestos, the asbestos crude that are encapsulated within the rust are then impacted by this same shot and will be broken into very fine airborne fibers which, hopefully, are swept away in some form of baghouse.

Testimony of Mr. Anderson, April 5, 1993, Tr. at 23.

Mr. Anderson also testified that asbestos fibers and fibrils are major components in the sandblast dust, along with iron oxide, which is a rust color. Id. at 23. Mr. Anderson went on to testify, however, that after the sandblast dust is dumped out, and the emission settles to the ground, that one would find iron oxide. One would be unlikely to find, however, asbestos in the dust that has settled to the ground, because asbestos fibers settle very slowly. Therefore, if there is a slight breeze present it would be unlikely that the asbestos fibers would settle anywhere near the site from which they were released. Testimony of Mr. Anderson, April, 5, 1993, Tr. at 24. Moreover, Mr. Stiner, the biology team leader at the United States Environmental Protection Agency's ("EPA") Central Regional Laboratory, testified that asbestos material can only be detected through the use of an instrument, such as a microscope. Testimony of Mr. Stiner, April 2, 1993, Tr. at 324, 335-36.

The final step in the brake shoe delining/relining process occurs when Midwest rivets new brake linings or pads onto the refurbished brake shoes. Stip. No. 27; Testimony of Mr. Ciupak, April 1, 1993, Tr. at 55; Government's Ex. 47. The new brake shoes are pre-cut with pre-drilled holes in which the new rivets are placed.

The parties stipulated that:

For certain application for which Midwest performs lining and delining of brake shoes, only brake linings containing asbestos are available. Midwest periodically performs lining or delining of such brake shoes. Therefore, from time to time, Midwest purchases new brake block containing asbestos, maintains an inventory of such brake block, and uses asbestos-containing brake block when performing these operations.

Stip. No. 33.⁵

The parties also entered to following relevant stipulations:

34. On or about August 1, 1985, U.S. EPA inspector Kenneth E. Radtke performed a NESHAP compliance inspection of the Midwest facility. In the presence of Mr. Radtke, Midwest employees dumped a small waste hopper containing floor sweepings and fragmented linings from the brake stripping operation into a large waste bin outside of the facility.

35. Mr. Radtke took a sample of the material in the small waste hopper during the August 1, 1985 inspection prior to the dumping of it into the waste bin. This sample was analyzed and found to contain one to two percent (1-2%) chrysotile asbestos. It is stipulated by the parties that the sample analyzed is the same sample taken by Mr. Radtke on August 1, 1985, that the test results accurately reflect the amount of asbestos in that sample, and that the laboratory report

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