ELR Citation: ELR 21200
No(s). 89-237 (D. Kan. Mar 31, 1992)

The court holds that a construction company that undertook renovation projects at an electric utility facility and a high school must pay $126,000 in civil penalties for asbestos work practice violations of the national emissions standards for hazardous air pollutants (NESHAP), promulgated under §112 of the Clean Air Act. The court finds no precedent describing calculation methods under the civil penalty provision, §113, of the Clean Air Act; however, the court finds parity between the civil penalty factors set forth in §113(e) and those enumerated in §309(d) of the Federal Water Pollution Control Act (FWPCA). Relying on persuasive circuit court authority construing the similarly worded penalty assessment criteria under the FWPCA, the court holds that the departure point for imposing a civil penalty under the Clean Air Act §113 is the statutory maximum, to be mitigated by factors enumerated in §113(e). Applying these factors to calculate the construction company's penalty, the court holds that reduction of the maximum statutory penalty is not warranted, because asbestos work practice violations are serious as a matter of law; state regulatory authorities have filed at least five previous actions against the company for asbestos NESHAP violations; the high school site violations lasted for about six weeks; no evidence exists of the company's good-faith efforts to comply; and the company has not paid any previous penalties for the violations charged. The court also finds that the company's ability to pay is limited. Next, the court holds that the recovery of the violator's economic benefit from noncompliance is essential, and that economic benefit should serve as the floor below which the maximum civil penalty should not be mitigated. The court reduces the maximum civil penalty and orders the company to pay $126,000, a sum equivalent to the company's ecnomic benefit from noncompliance, to the U.S. Treasury. Finally, the court enjoins the company from future violations of the asbestos NESHAP.

Counsel for Plaintiff
Angela O'Connell
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Robert Namrich
1125 Grand Ave., Ste. 1800, Kansas City MO 64106
(816) 472-4600