EPA v. ENERGY INSULATION, INC., ET AL

Case summary

NATURE OF CASE THIS IS A CIVIL ACTION AGAINST AN ASBESTOS REMOVAL CON- TRACTOR AND SIX SCHOOL DISTRICTS IN THE STATE OF WYOMING. THE ACTION IS PURSUANT TO SECTION 113(B) OF THE CLEAN AIR ACT, 42, U.S.C. 7413(B) AND SEEKS PENALTIES AND INJUNCTIVE RELIEF FOR FAILURE TO COMPLY WITH THE NOTIFICATION PROVISION OF THE NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS (NESHAPS) FOR ASBESTOS, 40 C.F.R. SUBPART M, SECTION 61.140 ET SEQ., ARISING OUT OF THE RENOVATION OF 35 SCHOOL BUILDINGS IN WYOMING. CAUSE OF ACTION THIS ACTION ALLEGES THAT THE DEFENDANT ENERGY INSULATION, INC. (EII) REMOVED ASBESTOS FROM 35 SCHOOL BUILDINGS. BY REMOVING ASBESTOS THE RESPONDENT RENOVATED THE BUILDING AS DEFINED IN 40 C.F.R. SUBPART M, SECTION 61.141. THE BUILD- INGS CONTAINED MORE THAN 260 LINEAR FEET OR 160 SQUARE FEET OF FRIABLE ASBESTOS MATERIAL. THE ACTION ALLEGES THAT THE NOTIFICATION REQUIREMENTS OF NESHAPS ARE THEREFORE APPLICABLE TO THE RENOVATIONS, AND THAT DEFENDANT EII AND THE SIX SCHOOL DISTRICTS AS OWNERS OF THE BUILDING FAILED TO GIVE THE AGENCY ADVANCE NOTICE IN ALL 35 INSTANCES. ALL THE RENOVATION PROJECT OCCURRED OR WERE COMPLETED IN 1984. ALTHOUGH DEFENDANT EII HAS STATED THAT IT COMPLIED WITH THE REGULATIONS GOVERNING THE MANNER OF ASBESTOS REMOVAL, THE REGION HAS NO INDEPENDENT EVIDENCE TO SUBSTANTIATE THIS CLAIM. PROPOSED REMEDY THE AGENCY SEEKS INJUNCTIVE RELIEF AGAINST DEFENDENT EII AND AGAINST ALL SIX SCHOOL DISTRICTS. THE AGENCY ALSO SEEKS CIVIL PENALTIES IN THE AMOUNT OF $130,000 AGAINST DEFENDANT EII FOR THE VIOLATIONS UPON WHICH THIS ACTION IS BASED. THE REGION ASSUMES THAT DEFENDANT EII WOULD BE INTERESTED IN A SETTLEMENT OF THIS ACTION. THE REGION FURTHER ASSUMES THAT THE DEFENDANT SCHOOL DISTRICTS WILL NOT VIGOROUSLY RESIST INJUNCTIVE RELIEF AGAINST THEM. HOWEVER, SINCE NONE OF THE DEFENDANTS ARE AWARE THAT THIS ACTION IS BEING PREPARED, THE REGION IS UNABLE TO COMMENT ON ACTUAL SETTLE- MENT PROSPECTS. ISSUES OF NATIONAL OR PRECEDENTIAL SIGNIFICANCE THE DELICATE ISSUE IN THIS CASE IS HOW TO RESPOND TO THE VIOLATIONS BY THE SHCOOL DISTRICTS WHO, AS OWNERS OF THE BUILDING RENOVATED, ALSO BEAR RESPONSIBILITY FOR COMPLIANCE WITH THE NOTIFICATION PROVISIONS OF NESHAPS. FOR REASONS SUMMARIZED BELOW AND DETAILED IN THIS REPORT, THE REGION IS RECOMMENDING ONLY INJUNCTIVE RELIEF AGAINST THE SCHOOL DISTRICTS. THE ISSUE, HOWEVER, APPEARS TO BE ONE OF FIRST IMPRESSION WITHIN THE AGENCY AND WARRANTS FURTHER DISCUSSION BETWEEN THE REGION, AGENCY HEADQUARTERS, AND THE DEPARTMENT OF JUSTICE. PENALIZING THE SCHOOL DISTRICTS IS LIKELY TO BE COUNTER PRODUCTIVE. THE MISSION OF THE SCHOOL DISTRICTS IS PUBLIC EDUCATION. PENALIZING THE DISTRICTS WOULD IN ESSENCE BE PENALIZING THE TAXPAYERS AND TAKING MONEY THAT WOULD NORMALLY GO FOR EDUCATIONAL PURPOSES. FURTHERMORE, SINCE EFFORTS TO COMPLY WITH TSCA REGULATIONS CONCERNING ASBESTOS (40 C.F.R. SECTION 763.100 ET SEQ.) LED TO APPARENTLY INADVERTENT VIOLATIONS OF NESHAPS BY THE SCHOOL DISTRICTS, PENALIZING THE SCHOOL DISTRICTS WOULD NOT APPEAR TO BENEFIT THE AGENCY'S IMAGE. FURTHER DISCUSSION OF THIS ISSUE IS MERITED. USE OF CASE DEVELOPMENT PROCESS THE REGION HAS DISCUSSED THIS CASE WITH KEN REICH OF THE DEPARTMENT OF JUSTICE AND ELLIOTT GILBERG OF THE AGENCY'S OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING.

Defendants (1)

• ENERGY INSULATION, INC.Named in complaintNamed in settlement

Facilities (33)

• ARP ELEMENTARY SCHOOL

  1216 E REINER CT, CHEYENNE, WY, 82001

  Registry ID: 110025809427

• ALTA VISTA ELEMENTARY SCHOOL

  1620 LOGAN AVE, CHEYENNE, WY, 82001

  Registry ID: 110010686533

• JACKSON ELEMENTARY SCHOOL

  720 W JACKSON AVE, RIVERTON, WY, 82501

  Registry ID: 110010668820

• HEBARD ELEMENTARY SCHOOL

  413 SEYMORE AVE, CHEYENNE, WY, 82001

  Registry ID: 110010668795

• MILLER ELEMENTARY SCHOOL

  3501 EVANS AVENUE, CHEYENNE, WY, 82001

  Registry ID: 110010686365

• WINDRIVER HIGH SCHOOL

  TOWN OF KINNEAR, KINNEAR, WY, 82516

  Registry ID: 110010590770

• SOUTHSIDE ELEMENTARY SCHOOL

  6TH AND POPO AGIE STREET, LANDER, WY, 82520

  Registry ID: 110010668875

• ENERGY INSULATION INC.

  3770 N DAME, CASPER, WY, 82602

  Registry ID: 110010732412

• CHURCHILL ELEMENTARY SCHOOL

  510 W 29TH ST, CHEYENNE, WY, 82001

  Registry ID: 110010686551

• BAIN ELEMENTARY SCHOOL

  903 ADAMS AVE, CHEYENNE, WY, 82001

  Registry ID: 110027098441

• LINCOLN ELEMENTARY SCHOOL

  1304 E LINCOLN, RIVERTON, WY, 82501

  Registry ID: 110010668848

• DAVIS ELEMENTARY SCHOOL

  6309 YELLOWSTONE ROAD, CHEYENNE, WY, 82001

  Registry ID: 110010732396

• JEFFERSON ELEMENTARY SCHOOL

  313 E JEFFERSON AVE, RIVERTON, WY, 82501

  Registry ID: 110010686356

• BUFFALO RIDGE ELEMENTARY SCHOO

  5331 PINE RIDGE AVENUE, CHEYENNE, WY, 82001

  Registry ID: 110010749912

• FAIRVIEW ELEMENTARY SCHOOL

  2801 E 10TH ST, CHEYENNE, WY, 82001

  Registry ID: 110010668786

• …and 18 more

Statutes cited

• CAA 112 — Hazardous Air Pollutants

Enforcement conclusions (1)

• ENERGY INSULATION, INC.entered 1986-04-25

  Primary law: CAA

  Federal penalty: $1,000

Timeline (8 milestones)

• 1985-06-04Referred To Headquarters
• 1985-06-25Referred To Dept Of Justice
• 1985-09-20Referred TO U.S. Attorney
• 1985-09-26Complaint Filed With Court
• 1986-04-25Final Order Lodged
• 1986-04-25Final Order Entered
• 1986-04-25Concluded
• 1988-04-25Enforcement Action Closed