EPA v. KANSAS CITY POWER & LIGHT

Case summary

NATURE OF THE CASE KANSAS CITY POWER AND LIGHT (KCP&L) OWNS A GENERATING STATION IN WICHITA, KANSAS. SINCE NOVEMBER 1982, A CON- TRACTOR HAS BEEN REFURBISHING A BOILER AT THIS FACILITY. THE RENOVATION HAS INVOLVED THE REMOVAL OF MATERIAL CONTAIN- ING FRIABLE ASBESTOS. CAUSE OF ACTION THE RENOVATION OPERATION IS SUBJECT TO THE NATIONAL EMISSION STANDARD FOR ASBESTOS. 40 CFR SECTION 61.22(D)(2) REQUIRES THE OWNER OF A RENOVATION SITE TO NOTIFY EPA IN ADVANCE OF BEGINNING OPERATIONS IF ASBESTOS IS PRESENT. KCP&L FAILED TO COMPLY WITH THIS REQUIREMENT. IN ADDITION, 40 CFR SECTION 61.22(D)(4)(II) REQUIRES THAT ASBESTOS ON PIPES BE ADEQUATELY WETTED DURING STRIPPING. AN EMPLOYEE AT THE PLANT HAS INFORMED THE AGENCY THAT IN- SULATION CONTAINING ASBESTOS HAS BEEN STRIPPED FROM PIPES DRY, IN VIOLATION OF THIS REQUIREMENT. ALTHOUGH EPA IN- SPECTORS DID NOT OBSERVE RENOVATION IN PROGRESS, THE AGENCY MAY BE ABLE TO CALL THE EMPLOYEE AS A WITNESS. PROPOSED REMEDY REGION VII IS RECOMMENDING THAT THE AGENCY SEEK IN- JUNCTIVE RELIEF REQUIRING KCP&L TO COMPLY WITH THE NOTIFICA- TION REQUIREMENTS IN FUTURE DEMOLITIONS AND RENOVATIONS, AND A CIVIL PENALTY FOR THE VIOLATION AT THIS FACILITY. IN ADDITION, THE REGION INTENDS TO PURSUE A NEGOTIATED SETTLE- MENT REQUIRING COMPLIANCE WITH WORK PRACTICE STANDARDS. ISSUES OF NATIONAL OR PRECEDENTIAL SIGNIFICANCE THE UNITED STATES SUPREME COURT, IN ADAMO WRECKING COMPANY V. UNITED STATES, 434 U.S. 275 (1978), HELD THAT THE AGENCY, PRIOR TO THE 1977 CLEAN AIR ACT AMENDMENTS, DID NOT HAVE THE AUTHORITY TO PROMULGATE STANDARDS THAT ES- TABLISHED WORK PRACTICE REQUIREMENTS RATHER THAN NUMERICAL LIMITATIONS ON EMISSIONS. THE 1977 AMENDMENTS ADDED SUB- SECTION(E) TO SECTION 112, WHICH AUTHORIZES THE ADMINISTRA- TOR TO ESTABLISH WORK PRACTICE STANDARDS UPON A FINDING THAT A NUMERICAL LIMITATION IS INFEASIBLE. ON JUNE 19, 1978 EPA PUBLISHED AMENDMENTS TO THE ASBESTOS STANDARD WHICH, AMONG OTHER THINGS, PROMULGATED PORTIONS OF THE WORK PRAC- TICE REQUIREMENTS FOR DEMOLITION AND RENOVATION. INCLUDED IN THE PORTIONS PUBLISHED AT THAT TIME IS THE REQUIREMENT THAT THE CONTRACTOR ADEQUATELY WET THE ASBESTOS DURING STRIPPING. SINCE THE ADAMO CASE, THE AGENCY'S ATTEMPTS TO ENFORCE THE ASBESTOS STANDARDS HAVE BEEN LIMITED TO REQUIREMENTS OTHER THAN WORK PRACTICES, SPECIFICALLY NOTIFICATION AND THE PROHIBITION ON VISIBLE EMISSIONS FROM CERTAIN TYPES OF SOURCES. THIS WOULD BE THE FIRST CASE TO ATTEMPT TO EN- FORCE WORK PRACTICE STANDARDS ADOPTED IN THE 1978 RULE- MAKING. I THINK WE CAN SUPPORT THE ENFORCEABILITY OF THESE REQUIREMENTS, BUT WE CAN EXPECT TO ENCOUNTER SOME RELUCTANCE FROM THE DEPARTMENT OF JUSTICE, BASED ON PREVIOUS DIS- CUSSIONS. PLEASE NOTE THAT AN ASBESTOS REPROMULGATION PACKAGE IS EXPECTED TO BE PROPOSED IN THE FEDERAL REGISTER IN THE NEXT MONTH OR TWO. THE PREAMBLE TO THAT RULEMAKING STATES THE AGENCY'S POSITION THAT PORTIONS OF THE WORK PRACTICE STAND- ARDS WERE VALIDLY PROMULGATED IN 1978 AND THAT WE ARE NOW REPROMULGATING PORTIONS WHICH WERE NOT PUBLISHED IN 1978. THUS THE POSITION ADVOCATED IN THIS CASE IS CONSISTENT WITH THE CURRENT REGULATORY ACTION.

Defendants (2)

• BABCOCK AND WILCOX COMPANYNamed in complaintNamed in settlement
• KANSAS CITY POWER AND LIGHTNamed in complaintNamed in settlement

Facilities (4)

• KANSAS CITY POWER & LIGHT COMPANY LA CYGNE GENERATING STATION

  RURAL ROUTE 1 BOX 60, LA CYGNE, KS, 660409803

  Registry ID: 110000747988

• KANSAS CITY POWER & LIGHT COMPANY LA CYGNE GENERATING STATION

  RURAL ROUTE 1 BOX 60, LA CYGNE, KS, 660409803

  Registry ID: 110000747988

• KANSAS CITY POWER & LIGHT COMPANY LA CYGNE GENERATING STATION

  RURAL ROUTE 1 BOX 60, LA CYGNE, KS, 660409803

  Registry ID: 110000747988

• KANSAS CITY POWER & LIGHT COMPANY LA CYGNE GENERATING STATION

  RURAL ROUTE 1 BOX 60, LA CYGNE, KS, 660409803

  Registry ID: 110000747988

Statutes cited

• CAA 112 — Hazardous Air Pollutants

Enforcement conclusions (1)

• KANSAS CITY PWR & LGHTentered 1984-03-08

  Primary law: CAA

  Federal penalty: $50,000

Timeline (8 milestones)

• 1983-04-14Referred To Headquarters
• 1983-05-10Referred To Dept Of Justice
• 1984-01-04Referred TO U.S. Attorney
• 1984-01-05Complaint Filed With Court
• 1984-03-08Final Order Lodged
• 1984-03-08Final Order Entered
• 1984-03-08Concluded
• 1984-04-23Enforcement Action Closed