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FRIED v. SUNGARD RECOVERY SERVS.

February 20, 1996

SIGMUND FRIED, et al.
v.
SUNGARD RECOVERY SERVICES, INC., et al.



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 FEBRUARY 20, 1996

 All Defendants; SunGard Recovery Services Inc., SunGard Data Systems, Inc., James DiBrino, Michael Mulholland (jointly, the SunGard Defendants) and Intech Construction, Inc., move this Court for a Summary Judgment on Count II of Plaintiffs' Second Complaint. This is the only count common to all Defendants and the only count remaining against the SunGard Defendants.

 This Court will grant a summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). We must determine whether the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).

 In making this determination, we view all the facts in the light most favorable to the non-moving party and draw all reasonable inferences in favor of the non-moving party. Id. at 256. Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the non-moving party must establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3d Cir. 1990), cert. denied, 499 U.S. 921, 113 L. Ed. 2d 246, 111 S. Ct. 1313 (1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)).

 DISCUSSION

 First, Plaintiffs do not contest SunGard Data Systems, Inc.'s Motion for "full" Summary Judgment. As a result, the Motion will be GRANTED with respect to that Defendant.

 Second, and contested by Plaintiffs, is the Motion with respect to the other Defendants. Count II makes the charge that SunGard Recovery Services, Inc. (SRS), together with its independent contractor, Intech Construction Inc., conducted renovations on the sixth, seventh and mezzanine floors of 401 N. Broad Street, Philadelphia, in complete derogation of the laws governing asbestos removals. These laws are found in the Clean Air Act, 42 U.S.C. §§ 7401-7671q (1995) (CAA) and the National Emission Standard for Hazardous Air Pollutants for asbestos (NESHAP), 40 C.F.R. §§ 61.140-.157 (1995). Defendants contend that first, this Court has no jurisdiction over Plaintiffs' claims, and second, even if there is jurisdiction, there is no evidence to support the claims.

 As a basic rule, we will not have jurisdiction over this action unless Plaintiffs can show that Defendants are subject to the CAA and NESHAP and that Defendants failed to comply with the relevant requirements. United States v. Midwest Suspension & Brake, 824 F. Supp. 713, 725 (E.D. Mich. 1993), aff'd, 49 F.3d 1197 (6th Cir. 1995).

 A. Whether Defendants Are Subject to the CAA and NESHAP

 NESHAP's notice and work procedures requirements apply to a facility that is undergoing a renovation operation if the combined amount of Regulated Asbestos Containing Material (RACM) to be affected is at least 260 linear feet on pipes or at least 160 square feet on other facility components. A renovation operation is defined as a renovation operation or a number of such operations in which at least some RACM will be removed within a certain period of time. 40 C.F.R. § 61.141. Because NESHAP does not apply to removals concerning less than the above amount of asbestos, NESHAP requires an owner or operator of a renovation activity to thoroughly inspect the facility for the presence of asbestos before the renovation operation begins. 40 C.F.R. § 61.145.

 Plaintiffs present uncontested evidence that at least 2700 square feet of floor tile containing asbestos was removed from the sixth floor during one weekend in 1992. In addition, it is uncontested that in 1990, over 300 linear feet of asbestos-containing pipe insulation was removed from the building. Each of these two incidents alone concerns enough asbestos to trigger NESHAP for at least that renovation operation. ...


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