Although the notice indicates that the abatement contractor would perform the Seventh Floor work, that company's supervisor testified that no such work was actually done by his company.
The final incident concerns the Seventh Floor Bridge Area. Plaintiff claims that Defendant's records indicate that 30 feet of asbestos pipe insulation were removed by the abatement company, but that the company's invoices do not indicate that it ever charged Defendant for this work. This discrepancy, Plaintiff contends, indicates that the work was actually done by someone else.
Plaintiff contends that each incident demonstrates that Defendant violated the notice it filed. This argument is based on the evidence that the noticed certified abatement company did not perform the abatements, the asbestos was not disposed of at the noticed landfill and the abatements did not take place during the time frame or locations identified in the notice.
Defendant claims that questions as to who performed the removal are red herrings, because the 1984 NESHAPS did not require a certified abatement person to supervise or perform removals until 1991. Defendant also maintains that there were no notice violations because the NESHAPS only required re-notification if the amount of asbestos to be affected was more than 20% of the original amount noticed. Because the cumulative amounts alleged to have been removed did not rise to this quantity, Defendant contends that there were no notice violations.
We find that Plaintiff has presented evidence that on several different occasions, asbestos was removed in a manner not in accordance with Defendant's notice. Defendant's re-notification argument addresses a different issue. Even though Defendant may not have been required to re-notify, it still had to abide by its original notice. For this reason, we find material issues of fact as to the notice issues. Moreover, there is evidence that Defendant violated its notice more than once, meeting the 'repeat' requirement.
Plaintiff contends that in each incident, the asbestos was not stored in the proper containers, stored so that the asbestos would remain wet or stored in properly labeled containers. His evidence is that Jones simply placed wet asbestos into duct-taped trash bags, Fiorelli simply threw dry asbestos onto the floor, and that because the other incidents took place in the same time frame, it is reasonable to infer that the asbestos from those jobs was not stored properly either. Defendant contends that there is no evidence either way with respect to storage or labeling in every incident but the Fiorelli incident, and that Fiorelli's testimony lacks credence.
Jones's testimony was detailed, and a fair inference on summary judgment is that if he did not mention labels, then there were no labels. Therefore, there is a question of fact as to whether his bag was properly labeled. There is also a question of fact as to whether his bag was an appropriate container, because Plaintiff's expert opines that a trash bag sealed with duct tape is not leak-tight. We also find an issue of fact as to whether asbestos was properly stored and labeled in the Fiorelli incident. Because these are two incidents, the repeated requirement is met. We do not find issues of fact as to the other incidents, because there is no evidence as to them from which we can infer anything.
Having found genuine issues of material fact with respect to whether the NESHAPS were repeatedly violated, we deny summary judgment as to the 1990 Seventh Floor North Buildout.
III. FAILURE TO SURVEY
Finally, Plaintiff asks this Court to consider other renovation projects even though there is no evidence that they met NESHAPS's minimum amount. Plaintiff presents evidence that the Sixth Floor was never surveyed until 1995, despite the fact that renovations began in that space in 1981, and that the southern part of the Seventh Floor was not surveyed until 1995, despite renovations conducted there from 1991 to 1994.
Plaintiff argues that Defendant's failure to survey is the reason why there is no evidence of the amount of asbestos removed, and so any presumptions of amount should be made against Defendant. In addition, Plaintiff contends that the NESHAPS required a survey regardless of the amount of asbestos involved, and so Defendant's failure to survey is an independent NESHAPS violation.
Defendant argues that it had no duty to inspect unless the requisite amounts of asbestos were involved. This argument is unsupported by the NESHAPS, however. The regulations instruct the owner or operator of a facility to, "prior to the commencement of the demolition or renovation, thoroughly inspect the affected facility or part of the facility where the demolition or renovation operation will occur for the presence of asbestos." 40 C.F.R. § 61.145(a). A renovation is defined as "altering a facility or one or more facility components in any way." 40 § C.F.R. 61.141. A renovation is not limited to an activity that involves asbestos. For this reason, Defendant had a duty to inspect its facility regardless of the amount of asbestos it was aware of before the inspection.
Based on this, we find a genuine issue of material fact as to whether Defendant complied with the NESHAPS's survey requirements.
An appropriate Order follows.
IN THE UNITED STATES DISTRICT COURT
AND NOW, this 30th day of April, 1996, upon consideration of Defendant's Supplemental Motion for Summary Judgment and responses thereto, the Motion is hereby DENIED in accordance with the attached Memorandum. Further, Defendant's Motion to Strike Affidavit of John Chase is hereby DENIED as MOOT.
BY THE COURT:
J. CURTIS JOYNER, J.