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UNITED STATES v. TZAVAH URBAN RENEWAL CORP.

October 11, 1988

UNITED STATES OF AMERICA, Plaintiff
v.
TZAVAH URBAN RENEWAL CORP., et al., Defendants



The opinion of the court was delivered by: LECHNER, JR.

 ALFRED J. LECHNER, JR., UNITED STATES DISTRICT JUDGE.

 The Government has made an application on behalf of the Environmental Protection Agency ("EPA") for a preliminary injunction to abate a serious health hazard posed by dry asbestos, a known carcinogen and the cause of a debilitating lung disease, asbestosis. Defendants Tzavah Urban Renewal Corporation ("Tzavah"), Pinros/Gar Datsun Investments ("Pinros"), Henry Roth ("Roth"), Sol Mayer ("Mayer") and Harry Hampel ("Hampel") (collectively, "defendants") own and/or operate a building located at 16 Park Place, Newark, New Jersey, formerly known as the Old Military Park Hotel. Defendants purchased the hotel from the city of Newark in August of 1986 and commenced renovation the following year. On October 16, 1987, defendants were contacted by the EPA and advised that the building was contaminated with asbestos and that the renovation work was being conducted in violation of the Clean Air Act and federal work practice standards for asbestos.

 Over the past year, the EPA has repeatedly ordered defendants to comply with these regulations. The Government alleges that the defendants' response has been inadequate and now requests that the court enjoin defendants to secure the facility, to properly collect and dispose of the friable asbestos containing material present on site, and to comply with the requirements of federal law and the administrative compliance orders previously issued to defendants. Although defendants have accelerated efforts to meet EPA's concerns in recent weeks, their failure to comply fully and do so in a timely fashion warrants the exercise of the court's equity powers. For the reasons discussed below, the Government's motion for a preliminary injunction is granted.

 Facts

 The history of this case exemplifies the difficulties often encountered in the enforcement of environmental regulation. Defendants Mayer t/a Pinros and Roth purchased the Old Military Park Hotel, located at 16 Park Place, Newark, New Jersey, from the city of Newark for $ 250,000 in August of 1986. Hampel Affidavit, para. 3. Although Mayer and Roth were given an opportunity to inspect the facility before bidding, the city did not inform prospective buyers that the hotel was permeated with asbestos containing materials ("ACM"). *fn1" Hampel Affidavit, para. 47. When defendants bought the building, it was in great disrepair and had been uninhabited for many years. The proposed renovation of the hotel was considered to be an urban renewal project. In order to qualify for the tax abatement offered such projects, the owners created Tzavah, an urban renewal corporation. *fn2" Hampel Affidavit, para. 7.

 In June of 1987, defendants engaged Creer Industrial Corporation to "gut" the hotel at a cost of $ 300,000. While this work was going on, Jose Rodriguez ("Rodriguez"), an EPA inspector, conducted an investigation of the site and concluded that the hotel was contaminated with asbestos. Rodriguez observed Creer employees throwing asbestos laced objects out of the windows of the building and noted an uncovered refuse pile next to the hotel which also contained ACM.

 The workers were not wetting the debris before heaving it out of the windows; the refuse pile was also dry. *fn3" As a result, asbestos dust was being released into the air. Rodriguez Affidavit, para. 6. Though the hotel is located in a commercial district, there are private homes situated nearby. Fitzpatrick Affidavit, para. 5, Exhibit 3. An active garage stands to the right of the building, a government office to the left, and a municipal park across the street. The only fence surrounding the facility was broken and hence passers-by could easily gain access to the contaminated hotel. Concerned with the danger to public health posed by the asbestos, Rodriguez immediately pursued his investigation.

 Rodriguez tested five samples taken from the facility and found they all contained friable asbestos. *fn4" Renovation of buildings contaminated with asbestos is regulated by Section 112 of the Clean Air Act (the "Act"), 42 U.S.C. § 7412 and the National Emission Standard for Hazardous Air Pollutants ("NESHAP"), 40 C.F.R. Part 61, Subpart M. These regulations require owners and/or operators of facilities containing ACM to notify the EPA before commencing with renovation and/or demolition, 40 C.F.R. § 61.146, and prescribe various procedures for storage and removal of the asbestos. Tzavah failed to provide this notice. Rodriguez determined that the hotel contained approximately 9500 linear feet and 2500 square feet of ACM in the building. Rodriguez Affidavit, para. 6b.

 Apparently, defendants did not learn of Rodriguez' visit until October 16. Hampel Affidavit, para. 13. Defendants subsequently ordered Creer to stop work at the hotel and hired the Environmental Monitoring and Consulting Associates ("EMCA"), a testing laboratory, to conduct an independent analysis of the premises. Hampel Affidavit, para. 18. There is some confusion regarding the timing and substance of Rodriguez' ensuing communications with the defendants. (Compare Rodriguez Second Affidavit, paras. 3-5 and Hampel Affidavit, paras. 16-18.) According to Rodriguez, he spoke with defendant Hampel on October 16, 1987 and told him that there were probably numerous, serious asbestos violations at the hotel and that Tzavah must comply with the EPA asbestos regulations at 40 C.F.R. Part 61, Subpart M. Rodriguez states: "It was my understanding that [Hampel] would read the asbestos regulations and comply with them fully." Rodriguez Second Affidavit, para. 6.

 Hampel recalls that this conversation took place on October 29 and that Rodriguez merely informed him that any additional removal would have to be carried out by an approved asbestos removal contractor. Hampel Affidavit, para. 17. That day, Hampel wrote Rodriguez, advising him that all work at 16 Park Place had ceased, EMCA had been retained, efforts were being made to retain an engineer knowledgeable in asbestos removal and a certified contractor would be hired to remove the asbestos and ACM upon receipt of the test results. Hampel Affidavit, para. 18, Exhibit D. Defendants received their test results confirming the presence of asbestos in the hotel on November 9, 1987. Hampel Affidavit, para. 19, Exhibit E. However, no efforts were made toward removing the asbestos until July of 1988.

 On December 9, 1987, EPA issued Tzavah Compliance Order Index No. 70234, mandating compliance with 40 C.F.R. Part 61, Subpart M during all renovations and/or demolitions in which friable asbestos is present. Rodriguez Affidavit, para. 8, Exhibit 4. In letters, dated December 23, 1987 and January 28, 1988, Tzavah assured EPA that it was proceeding to remedy the violations and to comply with the asbestos NESHAP regulations and EPA's order. Rodriguez Affidavit, para. 10, Exhibits 9-11. Tzavah wrote a follow-up letter to Christopher Daggett, EPA Regional II Administrator, on January 28, enclosing a copy of the "Specifications for Asbestos Insulation Removal at 16 Park Place, Newark, New Jersey" which had been prepared by EMCA. *fn5" From February until July of 1988 defendants were engaged in the process of hiring an asbestos removal contractor. In June, Asbestos Control Consultants was retained to provide consulting services for the asbestos removal project and Mariscott-Douglas, an asbestos abatement contractor, was hired in July. Hampel Affidavit, paras. 22, 26-33, Exhibit H. Despite these communications with EPA and his efforts to find an experienced asbestos contractor, Hampel asserts that he believed the compliance order had been satisfied at the time it was received, as all operations at the property had ceased in October. Hampel Affidavit, para. 20.

 Rodriguez made two follow up visits to the facility on June 21 and July 11. He found the hotel to be in essentially the same condition as in October. There were still large amounts of visible ACM in the building. In addition to the debris pile Rodriguez observed earlier, there was another waste pile. Both piles were dry and uncovered. Rodriguez Affidavit, paras. 11-12. As on his first inspection, the windows in the building did not have panes and were unsealed. Access to the building was not secured. Rodriguez and his associate, EPA investigator Robert Fitzpatrick ("Fitzpatrick"), took five samples from the area. All contained friable asbestos. Rodriguez Affidavit, para. 12, Exhibit 14.

 Two weeks later, defendants received warning that EPA intended to issue another administrative order requiring Tzavah to secure the property at 16 Park Place within 48 hours. Hogan Affidavit, para. 3. EPA issued Compliance Orders 80120, 80121 and 80122 to defendants Tzavah, Pinros and Roth on July 28. *fn6" Defendants received EPA's new orders on August 1; their terms should have been complied with by August 3.

 Site visits by EPA inspectors showed that as of August 5, defendants had only partially sealed four windows out of the approximately four hundred thirty five in the building, and had neither covered nor wetted the debris piles. Halter Affidavit, para. 10. Although Rodriguez asserts that it was possible to seal all of the windows in the building within forty eight hours, he notes that defendants actually had over two and one-half weeks (from the July 13 meeting until August 3) to complete the task. This was ample time. Rodriguez Second Affidavit, para. 21. Hampel counters that compliance on such short notice was impossible. Mariscott-Douglas was not scheduled to begin work on the facility until August 8, 1988. Hampel Affidavit, para. 36; Nowicki Affidavit, paras. 10-16.


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