US v. Owens Contracting Services, Inc.

• Decision Date: 14 December 1994
• Docket Number: No. 93-CV-10309-BC.,93-CV-10309-BC.
• Parties: UNITED STATES of America, Plaintiff, v. OWENS CONTRACTING SERVICES, INC., and Frank J. Buscarino, Defendants.
• Court: U.S. District Court — Western District of Michigan

884 F. Supp. 1095

UNITED STATES of America, Plaintiff, v. OWENS CONTRACTING SERVICES, INC., and Frank J. Buscarino, Defendants.

No. 93-CV-10309-BC.

United States District Court, E.D. Michigan, Northern Division.

December 14, 1994.

Janet L. Parker, Asst. U.S. Atty., Bay City, MI, Jeffrey M. Cox, Asst. Regional Counsel, EPA — Region 5, Chicago, IL, David S. Christensen, U.S. Dept. of Justice, Environmental Enforcement Section, Washington DC, for plaintiff.

James P. Boardman, Saginaw, MI, for defendant Owens Contracting.

Joseph H. Luplow, Saginaw, MI, for defendant Frank J. Buscarino.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

CLELAND, District Judge.

I. Background

This case arises out of the demolition of a garage in Saginaw owned by Frank Buscarino ("Buscarino") and demolished by defendant Owens Contracting ("Owens"). The garage corresponded to a 10 unit apartment building, but was physically separate from it. The apartment building "was partially destroyed by fire in July, 1989 and thereafter demolished July 17, 1989¹". Resp. Br. of City of Saginaw, p. 7.

On March 6, 1990, the City of Saginaw ordered Buscarino to demolish or repair the garage within 20 days because it found the garage to be "dangerous". On April 18, 1990, Buscarino contracted with defendant Owens for demolition of the garage. Owens demolished the garage between April 20 and May 3, 1990. The wooden walls of the garage were covered on the outside with "transite siding," which contains asbestos.

Owens used a "Hydra-Unit" to demolish the garage. "The Hydra-Unit had steel jaws at the end of a hydraulic-powered arm and moved about the site on two metal crawler tracks." JFPTO, pp. 12-13. "Owens loaded debris from the garage, including transite, into Owens' open semi-tractor trailer, using the jaws of the Hydra-unit." JFPTO, p. 13. The government contends that Owens "used the Hydra-Unit to push the outside walls with the transite still on them into the center of the building, forming a large pile of debris and then `drove over them repeatedly, crushing and pulverizing the transite laced debris and then proceeded to load the crushed and pulverized debris into a dump truck.'" Pl. Br. in Support, p. 9.

A Saginaw resident and employee of Mechanical Insulation Services, Inc. ("MIS"), Keith Anderson, telephoned the Michigan Department of Natural Resources Air Quality Division ("MDNR/AQD") and reported that demolition of the garage "was making the asbestos siding friable." JFPTO, p. 13. MDNR/AQD inspectors examined the demolition on April 21, 22, 23, 25, 26, 27 and May 1, and 3, 1990. JFPTO, p. 13. "Samples of transite siding taken during these inspections of the garage demolition were analyzed and reported to be between 10 to 20 percent asbestos" and "more than 1% asbestos by weight." JFPTO, p. 13.

No one submitted any written notice of intent to demolish the garage. JFPTO, p. 13. On April 25, 1990, MDNR/AQD "issued a letter of violation to Owens." JFPTO, p. 13. On May 3, 1990, MIS "arrived on the site to stabilize and clean up the site, billing Buscarino $20,000." JFPTO, p. 14.

At the time of the demolition, the garage² "contained used furniture, clothing and various other items." JFPTO, p. 12. These items were also described as "debris and junk and stuff from the house," Resp. of City of Saginaw, p. 8, quoting James Owens deposition, and "old mattresses, boxes of clothes, just trash more or less." Id. at 9, quoting Hall deposition. The garage was not locked: "anybody could have opened them the doors or closed them at any time. There was sic no locks. It was not secured." Id. at 9, quoting Hall deposition. The government contends that the garage was used for commercial purposes (and thus, a commercial facility) because it was used in connection with the apartment building.

Defendant Owens contends that defendants did not receive a definite answer from the MDNR as to whether the National Emission Standard for Hazardous Air Pollutants ("NESHAP") applied to the instant demolition and thus, that imposition of penalties would be unfair. Def. Br. in Support, p. 9. The government responds that even if defendant did not know it was subject to the provisions of NESHAP, NESHAP imposes strict liability, i.e. liability without regard to fault or fairness. Pl. Resp. Br., p. 9. The government is correct. United States v. Sealtite Corp., 739 F.Supp. 464, 468 (E.D.Ark.1990).

The government moves for "partial" summary judgment because it seeks judgment as to liability only, and leaves the amount of penalty to be decided at a later date. Defendant Owens moves for complete summary judgment.

The government averred the following violations of the asbestos NESHAP in its complaint:

(1) notice violation under 40 C.F.R. § 61.146,

(2) work practice violation — failure to wet under 40 C.F.R. § 61.147(e)(1) and (g), and

(3) work practice violation — discharge of visible emissions under 40 C.F.R. § 61.152(b).

Complaint, pp. 10-12.

Defendant Buscarino also cross-claimed against defendant Owens in the event that Buscarino was held liable. JFPTO, p. 5. Based on the following order entering summary judgment for defendant Owens and Buscarino and denying plaintiff's motion for summary judgment, the court believes the cross-claim is moot.

As stipulated by the parties, the applicable regulations are those that were in place at the time of the demolition, i.e., the 1988 asbestos NESHAP which predated the 1990 amendments.³ JFPTO, p. 2. Unless otherwise stated, the regulations cited in this opinion will be those applicable in the instant case.

Having read the briefs and materials submitted as well as having heard oral argument in this matter,⁴ the issue is ripe for decision.

II. Standard

Summary judgment is proper only where the moving party shows that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when "the record as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The court is required to ask "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). The party opposing summary judgment must present "affirmative evidence in order to defeat a properly supported motion for summary judgment." Id. at 1479, citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Discussion

A. Overview of NESHAP (pre-1990 amendments)

The Clean Air Act (42 U.S.C. §§ 7401 et seq.) authorizes the Administrator of the Environmental Protection Agency ("EPA") to promulgate standards for the handling of hazardous air pollutants. United States v. Hugo Key and Son, Inc., 731 F.Supp. 1135, 1140 (D.R.I.1989). "The NESHAP for asbestos was promulgated in 1973 after extensive evaluation and public comment, and is currently set forth at 40 C.F.R. part 61, Subpart M." Id.

In order to establish liability under the Asbestos NESHAP, the government must establish that (1) the Clean Air Act and the Asbestos NESHAP apply to defendant and (2) that defendant failed to comply with requisite requirements.

United States v. Midwest Suspension and Brake, 824 F.Supp. 713, 725 (E.D.Mich.1993).

The notice requirements of § 61.146 apply to "each owner or operator to which this section applies." § 61.145 specifies various work practice standards which apply to demolition operations, depending on the presence of listed "amounts of friable asbestos."

If a facility "is being demolished under an order of a State or local governmental agency, issued because the facility is structurally unsound and in danger of imminent collapse,⁵ only the requirements in § 61.146 and in paragraphs (d), (e), (f), and (g) of § 61.147 apply." 40 C.F.R. § 61.145(c) (1988). Since the instant garage was ordered to be demolished by the City of Saginaw, the more lenient subsection (c) applies here.

B. Amount of friable asbestos

The government contends that its "motion for partial summary judgment on liability is based on 40 C.F.R. § 145(c), relating to ordered demolitions." Pl. Resp. Br., p. 14. The government states that "40 C.F.R. § 61.145(c), does not require any showing of any amount of asbestos for NESHAP applicability." Pl. Resp. Br., p. 14.⁶ Thus, the government concludes, "there is no need at this juncture to prove any amount of friable asbestos." Pl. Resp. Br., p. 14. The government cites no case law in support of its reading of the regulations.

As noted earlier, applicability of the asbestos NESHAP is defined in § 61.145. Subsection (a) speaks to the larger amounts of friable asbestos — "at least 80 linear meters (260 linear feet) on pipes or at least 15 square meters (160 square feet) on other facility components"⁷ — for which "all the requirements of §§ 61.146 and 61.147 apply, except as provided in paragraph (c) of this section." § 61.145(a). § 61.146 sets forth notification requirements and § 61.147 sets forth emission control standards. Thus, where the amount of friable asbestos exceeds 80 linear meters on pipes (or 15 square meters on other facility components), the demolition operator must comply with notification and emission control standards.

Subsection (b) speaks to amounts of friable asbestos less than the 80 linear meters on pipes (or less than 15 square meters on other facility components) and provides that "only the requirements of paragraphs (a), (b), and (c)(1), (2), (3), (4), (5) of § 61.146 apply." Thus, if the amount of asbestos is less than 80 linear meters on pipes (or 15 square meters on other facility components), the demolition operation is required...