ELR Citation: ELR 21018
No(s). C89-1263Z (W.D. Wash. Nov 27, 1991)

The court holds that an employee of an asbestos removal business is liable as an operator under the Clean Air Act (CAA) for violations of the §112 asbestos national emission standard for hazardous air pollutants (NESHAP) at two sites where he exercised overall supervision, but not for violations at two other sites where he did not supervise or control the asbestos removal. The court first notes that for a person not the owner to be held liable, the person's supervision and control over the project must be significant or substantial or real. Although the employee's job titles ranged from estimator to president, the title given to an employee is not necessarily indicative of the employee's authority for purposes of determining owner or operator liability. The owner of the business remained the ultimate person in control, as evidenced by his firing of the employee. The court next finds that at two project sites, the employee is liable because he discussed the project with the foreman, gave directions concerning the work, and had the ability to correct the work. The employee was responsible for the overall supervision of the project and held himself out to others as being a person in charge. With respect to the two other sites, the court holds that the employee is not liable because he was not present at the sites and did not have sufficient control over the projects to be an operator. The employee did not estimate the jobs, was never on the job sites while the work was being performed, and never actually saw one of the buildings before the trial. Turning to the appropriate civil penalty, the court determines that the employee is liable for a $2,500 and a $1,000 civil penalty, respectively, at the two sites where he was found to be an operator, based on the nature of the violations and the defendant's ability to pay. Finally, the court enjoins defendant from removing asbestos without fully and completely complying with the CAA and the absestos NESHAP.

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

Counsel for Defendant
Rhys Alden Sterling
800 Bellevue Way NE, Bellevue WA 98004
(206) 454-8272