ELR Citation: ELR 21552
No(s). 95-A-263- (M.D. Ala. Jul 10, 1995)

The court denies a motion to dismiss a Clean Air Act (CAA) citizen suit seeking attorney fees and civil penalties against a university that allegedly violated the asbestos national emission standard for hazardous air pollutants (NESHAP) during renovation and remodeling of a university building. Workers in the building who noticed that dust from the project was irritating their eyes and causing them "respiratory distress" notified the university and the state of their concerns and filed suit three weeks later. The court first notes that although plaintiffs must generally give notice to the alleged polluter, the state in which the alleged violaiton occurred, and the U.S. Environmental Protection Agency (EPA) at least 60 days before bringing a citizen suit, there are two exceptions to the CAA's 60-day notice requirement. The court holds that the workers' suit does not fall within the CAA §112(f)(4) exception for suits alleging violations of §112(f) standards, because the legislative history and the language of §112(f)(4) indicate that those standards are not yet in place. The court holds that the standards at issue are neither the initial standards promulgated under §112(d) nor the standards that existed before the enactment of the 1990 CAA Amendments. They are supplemental standards meant to address the residual risks that exist after implementation of the first set of standards that the CAA authorized. Thus, the workers' suit is not brought for violations of standards under §112(f). The court next holds that the workers' suit falls within the §112(i)(3)(A) exception to the 60-day notice requirement for suits. The court rejects the university's argument that the court should ignore the part of §112(i)(3)(A) that prohibits violations of emissions standards after their effective dates and focus solely on the part that requires EPA to establish compliance dates for existing sources. The court holds that the plain language of the statute indicates that there is an exception to the notice provision when a person operates an emission source in violation of a standard under §112 after the standard's effective date. There is persuasive authority that citizen suits may be brought immediately where the suit concerns a violation of the stationarysource emissions standards under §112 and the NESHAPs. Further, it is logical that Congress would create an exception to the 60-day notice provision for the discharge of what it is has characterized as hazardous air pollutants. The court holds that §112(i)(3)(A) applies to the standards promulgated before the 1990 CAA Amendments and, thus, to the asbestos standards. The court holds that the suit may be brought without giving the university and the government 60 days' notice. The court next holds that the suit may be maintained even though it concerns purely past violations. The court holds that Congress explicitly authorized a CAA citizen suit either when defendants are currently in violation of a standard or when defendants have previously violated a standard. This clearly includes past violations, so long as there is evidence that the violations were repeated.

Counsel for Plaintiffs
M. Wayne Sabel, Mark W. Sabel Jr.
Sabel & Sabel
P.O. Drawer 1550, Montgomery, AL 36102
(334) 271-2770

Counsel for Defendants
Steve A. Tucker
Cabaniss, Johnston, Gardner, Dumas & O'Neal
Park Place Tower
2001 Park Pl. N., Ste. 700, Birmingham, AL 35283
(205) 252-8800