ELR Citation: ELR 20012
No(s). 94-1892 (7th Cir. Oct 24, 1994)

The court holds that §113(b)(3) of the pre-1990 version of the Clean Air Act (CAA) does not require the U.S. Environmental Protection Agency (EPA) to give notice as a precondition to filing suit, and affirms a district court's imposition of civil penalties against a landowner and an investment company for improperly removing friable asbestos from vacant buildings in violation of CAA §§112(c) and 114 and the national emission standards for hazardous air pollutants (NESHAP) for asbestos. The court first holds that the CAA does not require EPA to provide notice of violations of §112(c) before commencing an action for injunctive relief or civil penalties. Although §113(b)(2) contains a notice precondition, EPA did not—and could not—rely on that provision, because it does not apply to regulation of hazardous air pollutants. Section 113(b)(3), which vests authority in EPA to pursue violations of §112(c), simply states that the Agency may commence civil actions "whenever" it finds a violation. The court next holds that even if defendants lacked formal written notice, evidence at trial showed that they had actual notice of the violations well before the penalty period began. The court next holds that the district court did not abuse its discretion in imposing strict liability on the defendant investment company as an "owner or operator" of the site under the asbestos NESHAP. The investment company was clearly authorized to, and did, exercise control over the site sufficient to bring the company within the scope of the "owner or operator" designation, and the CAA imposes strict liability on all owners and operators in violation of the Act. Upholding the penalty imposed, the court holds that the district court acted within its discretion in setting the starting date for the penalty period 30 days after the date it found the landowner knew of the violations. The Act does not require courts to toll the penalty period until violators possess actual knowledge, and the district court acted reasonably in allowing the landowner sufficient time to begin asbestos removal. The court also holds that the district court properly imposed the statutory maximum civil penalty of $25,000 per day, given the violation's seriousness and duration, along with the delay before beginning remediation. Finally, the court holds that there is ample evidence in the record to support the district court's imposition of $1.5 million and more than $1.6 million in penalties against the landowner and the company, respectively.

Counsel for Plaintiff
William Lazarus
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Robert Egan
Egan & Trapp
221 N. La Salle St., Ste. 1238, Chicago IL 60601
(312) 263-2227

Before CUMMINGS, BAUER, and CUDAHY, Circuit Judges.