ELR Citation: ELR 20030
No(s). 92-35088 (9th Cir. Oct 26, 1993)

The court holds that an on-site superintendent with "substantial control" over asbestos removal projects could be liable as an "operator" of the projects under the Clean Air Act (CAA) for violations of CAA §112. The court first holds that the action is not barred by the three-year, tort statute of limitations, because the government's action is for the enforcement of a civil penalty, for which the appropriate statute of limitations period is five years, and is not a tort action. The court rejects as meritless the superintendent's contention of selective prosecution. Addressing the superintendent's liability as an "operator" under the CAA's regulations, the court holds that the district court properly concluded that the defendant was the operator of asbestos removal projects within the meaning of the Act. The defendant was clearly in substantial control of the projects having held himself out as being in charge of them. Regarding his substantive violations of the Act, the court holds that the superintendent's violation of the work practice standards for demolition and renovation projects involving asbestos constituted emissions under CAA §112(c)(1)(B). It is irrelevant whether there was emission of an air pollutant to the ambient air. Moreover, the negative-pressured enclosures in which the projects were conducted did not prevent modification of the structures, as defined by CAA §112(c)(1)(A), when there was physical removal of asbestos. Also, sufficient evidence exists that the enclosures did not prevent emissions from the modification. Finally, the court upholds the district court's conclusion that the asbestos material was friable and not adequately wetted before removal as required. Five witnesses testified that the asbestos was friable.

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

Counsel for Defendant
Rhys A. Sterling
P.O. Box 218, Hobart WA 98025
(206) 432-9348

Before Wallace and Wright, JJ.