Park Place and informed defendants that EPA would be issuing additional compliance orders. Halter Affidavit, para. 7. Hampel acknowledges that EPA expressed concern that the building and the property be secured. Hampel Affidavit, para. 30. However, it was Hampel's understanding that "secured meant installing plastic from floors one through three and securing a fence around the property." Id. at paras. 30 and 51. Halter does not recall any statement by an EPA representative to this effect. "Such a statement would have been contrary to the requirements of the law and our normal practice." Halter Affidavit, para. 7.
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.
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.
Defendants did make some effort to comply with the substance of the order. Mariscott-Douglas provided nineteen workers for the week of August 12. Defendants retained Consec Security Group to patrol the property and installed two fences. But, as the testimony of Neal Amsel, project monitor for the asbestos clean up, illustrates, defendants encountered numerous difficulties during this period. On August 4, materials brought to the facility were stolen; Mariscott-Douglas continually misrepresented the number of workers that would be assigned to the site; and Amsel had difficulty securing the parts needed to reactivate water pumps which had been in disrepair for years. Nowicki Affidavit, paras. 13-17; Amsel Affidavit, paras. 5-8. During Rodriguez' August 5 inspection, he observed the following: four windows on the ground floor were partially sealed; no other windows were sealed; there was no water for wetting ACM on site; the waste piles were uncovered and the material was dry; the fence on the right side of the building remained down
and the fences erected by Tzavah were of no value, because they did not enclose the entire perimeter of the property and thus did not prevent public access to the site. Rodriguez Affidavit, para. 18; Rodriguez Second Affidavit, para. 20.
On August 8, EPA received a report from defendants that purported to satisfy the requirements under the compliance orders that they submit a five day report and clean up plan. The next day EPA notified defendants that both reports contained major deficiencies including failure to wet the waste piles, lack of specific detail and an inadequate schedule for sealing the hotel windows. Rodriguez Affidavit, para. 21. Rodriguez and Fitzpatrick returned to the facility on August 10. When they arrived at 11:50 a.m., no workers were on site, there was no water for wetting the ACM, only about thirty windows had been sealed and there was evidence that vagrants had been inhabiting the asbestos ridden hotel. Rodriguez Affidavit, para. 19. Subsequent inspections were conducted August 16 and 17. Defendants had still failed to satisfactorily comply with EPA's orders. The Government filed this motion for the issuance of a preliminary injunction on August 19, 1988.
Due to the recent Jewish holidays, over three weeks elapsed between the Government's filing and defendants' response. During this period, defendants have made additional progress toward securing 16 Park Place and complying with the asbestos NESHAP regulations. By August 30, each window had been sealed, nylon reinforced plastic was placed on the rear debris piles and the reducing valve necessary to draw water directly from the building was installed. Nowicki Affidavit, para. 17. On September 7, Rodriguez once again visited the facility. He found significant amounts of dry, stripped ACM still in the building and noted that access to the site remains insecure. Rodriguez Second Affidavit, para. 20.
As the above facts reveal, the EPA has attempted to remedy the hazardous condition at 16 Park Place for almost a year. Thus far, the Agency's efforts to assure defendants' full compliance with the NESHAP regulations have proved ineffectual. Asbestos is still present at the facility and continues to pose a significant danger to the health of the community. In order to ensure that this danger is abated, the Government brought this action for injunctive relief pursuant to Section 113 of the Clean Air Act (the "Act"), 42 U.S.C. § 7413.
I. Plaintiff's Motion Is Not Moot
Defendants allege that they are presently in compliance with the statutes, regulations and orders at issue and assert that the injunctive relief sought by the Government is moot. It does appear the conditions at the Park Place facility have improved. Nevertheless, the Government disputes defendants' assertion that the hazard to public health has been cured. As recently as September 7, EPA engineer Rodriguez inspected the facility and observed that defendants continue to violate the wetting requirement of 40 C.F.R. § 61.147(e)(1). Rodriguez explains, ". . . I found significant amounts of dry, stripped ACM which was on or hanging from vertical pipes which run from the top to the bottom of the building. The ACM on these pipes is friable, exposed to air currents in the building and should be wetted." Rodriguez Second Affidavit, para. 19.
Rodriguez also noted that although defendants have erected fences on the property, "they do not completely encircle the property and do not prevent access to the site." Id., para. 20.
It is established that the voluntary cessation of allegedly illegal conduct "does not deprive the tribunal of power to hear and determine the case, i.e. does not make the case moot." United States v. W.T. Grant Co., 345 U.S. 629, 632, 97 L. Ed. 1303, 73 S. Ct. 894 (1953). The defendants' long history of non-compliance and Rodriguez' recent findings reveal a risk of continued and recurring violations. Even if defendants have made recent good faith efforts at compliance as they allege, to say that the case has become moot implies "that the defendant is entitled to dismissal as a matter of right." Id. This is certainly not the case when, as here, defendants accelerate efforts at compliance in the intervening period between the filing of the Government's motion and submission of defendants' reply. The Supreme Court has warned: "It is the duty of the courts to be aware of efforts to defeat injunctive relief by protestations of repentance therefrom, especially when abandonment seems timed to anticipate suit, and there is a probability of resumptions." United States v. Oregon State Medical Society, 343 U.S. 326, 330, 72 S. Ct. 690, 96 L. Ed. 978 (1952).
Defendants also assert that an injunction is unnecessary because there is "no current renovation operation being conducted at 16 Park Place." Defendants' Brief, p. 16. This argument is based on a fundamental misinterpretation of the asbestos NESHAP. As the Government correctly points out, the NESHAP regulations are activated when demolition or renovation begins and remain in effect until the facility has been rid of the dangers posed by asbestos dust. To permit a building owner to commence renovation and when asbestos is discovered, simply discontinue work with impunity, defies the purpose and logic of the statute.
The procedures for asbestos emissions control and the waste disposal provisions of the regulations, 40 C.F.R. §§ 61.147 and 61.152, anticipate that once asbestos is identified, it will be rendered non-hazardous by proper disposal. Defendants cannot circumvent the affirmative obligation imposed upon them by federal law and simply walk away from the Park Place project. Indeed, the defendants' numerous efforts at compliance underscore their awareness of this responsibility.
In another attempt to escape their obligations under the Clean Air Act, defendants contend that § 61.152 of the NESHAP regulations does not apply to them. Section 61.152 requires owners of a facility to deposit all ACM at waste disposal sites and to prevent the discharge of visible emissions to the outside air during collection. Arguing that this section contemplates only the final disposal site for waste material, defendants assert "it is disingenuous of the government to argue that piles of debris in the rear yard of the site are final waste disposal sites." Defendants' Brief, p. 18. Once again, defendants misconstrue the regulations. Section 61.152 makes no reference to "final" disposal sites. Further, if this provision applied only to the final deposit of asbestos containing material, the risk to human health posed by any interim collection of ACM would remain unabated. This would defeat the regulatory objective by allowing for the continued emission of asbestos dust while debris is being transferred to its final resting place.
II. The Standard for Issuance of a Preliminary Injunction
A plaintiff seeking a preliminary injunction must prove (1) a reasonable probability of success on the merits, (2) the likelihood of irreparable injury if the offensive conduct is not enjoined, (3) that granting preliminary relief will be in the public interest; and (4) a balancing of hardships favors the moving party. ERCI v. McGraw-Hill, Inc., 809 F.2d 223, 226 (3d Cir. 1987); Premier Dental Products Co. v. Darby Dental Supply Co., 794 F.2d 850, 852 (3rd Cir.), cert. denied, 479 U.S. 950, 107 S. Ct. 436, 93 L. Ed. 2d 385 (1986).
On August 11, 1988, another judge from the District of New Jersey applied this standard in a similar case involving violations of the asbestos NESHAP and granted the government's motion for a preliminary injunction against the owners and operators of a demolition operation. United States v. Anthony Dell'Aquila Enterprises, Civil Action No. 88-3232 JWB (D.N.J. Aug. 11, 1988). In another case involving violations of asbestos NESHAP, a judge in the District of Connecticut granted the United States' motion for a temporary restraining order against an owner and an operator of a demolition operation. United States v. Big Apple Wrecking Company, Inc., et al., Civil Action No. N-86-2l8 EBD (D. Conn. June 30, 1986). Injunctive relief is especially appropriate in this case, as defendants have been given ample opportunity to rectify their violations of federal law before this court was asked to intervene.
A. Reasonable Probability of Success on the Merits
Section 113 of the Act gives the Administrator of EPA authority to seek injunctive relief and/or the assessment of civil penalties whenever he finds that an owner or operator of a facility violates or fails or refuses to comply with any NESHAP regulation or any order issued pursuant to 42 U.S.C. § 7413(a). Defendants' violations of the asbestos NESHAP requirements and failure to comply with EPA orders have been well documented. It is very likely that the Government will succeed in imposing penalties upon defendants.
Defendants counter this claim with two arguments. First, because defendants' violations were not "knowing or intentional" the Government is not entitled to relief under the statute. Answer, paras. 7, 8, 9. In the alternative, defendants claim that the Government has not substantiated its allegations regarding their alleged violations.
1. No Mens Rea is Required under the Clean Air Act and NESHAP Regulations
Defendants' first contention is not supported by the Clean Air Act's underlying objectives. The District Court for the Eastern District of California has held that the Act and asbestos NESHAP "provide strict liability for civil violations of their provisions." U.S. v. Ben's Truck and Equipment, Inc., 25 E.R.C. 1295, 1298 (E.D. Cal. 1986). I agree with the California court's finding that strict liability is "essential to meet the purpose of the Act and to protect and improve the quality of the nation's air." Id. Furthermore, the statute and regulations themselves do not indicate that scienter is required for establishing violations of the Act.
By way of analogy, it is noted that certain federal criminal statutes which are essentially regulatory in nature and are designed to protect the public welfare "as a matter of policy, do not specify intent as a necessary element." Morissette v. United States, 342 U.S. 246, 252, 72 S. Ct. 240, 244, 96 L. Ed. 288 (1952); United States v. Engler, 806 F.2d 425, 431 (3d Cir. 1986), cert. denied, 481 U.S. 1019, 107 S. Ct. 1900, 95 L. Ed. 2d 506 (1987) (strict liability imposed on individuals who hunt migratory birds in violation of the Migrating Bird Treaty Act). Although the Clean Air Act is a civil not criminal statute, the penalties imposed for the improper disposal of asbestos can be considered quasi-criminal and the purpose of the statute is regulatory.
Imposing a strict liability standard for violations of the asbestos NESHAP is also supported by well accepted principles of tort law. Under the rule of Rylands v. Fletcher, L.R. 1 Ex. 265 (1866), aff'd, L.R. 3 H.L. 330 (1868), a landowner is strictly liable for any damages caused by ultrahazardous activities conducted on his land. This principal has recently been acknowledged by the New Jersey Supreme Court in State Dept. of Environ. Protec. v. Ventron Corp., 94 N.J. 473, 488, 468 A.2d 150 (1983) (a landowner is strictly liable to others for harm caused by toxic wastes that are stored in his property and flow onto the property of others). Section 519 of the Restatement of Torts 2d reads:
§ 519. General Principle
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.