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FRIED v. SUNGARD RECOVERY SERVS.

April 30, 1996

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



The opinion of the court was delivered by: JOYNER

 JOYNER, J.

 APRIL 30, 1996

 This action is brought under the Clean Air Act (CAA), 42 U.S.C. §§ 7401-7671q (1995). Today we address Defendant Sungard Recovery System's Supplemental Motion for Summary Judgment, filed at our request to clarify the issues remaining for decision. We requested further briefing focused on the following questions: (1) what constitutes a renovation operation; (2) was the requisite amount of asbestos affected within any one renovation operation so that the National Emission Standards for Hazardous Air Pollutants (NESHAPS) for Asbestos, 40 C.F.R. §§ 61.140--61.157, requirements were triggered; (3) if so, were any NESHAPS requirements violated (4) and if so, are these violations continuing or were they repeated. Findings made in our preliminary memorandum may be modified by this memorandum given the additional arguments and evidence presented by the parties. Plaintiff alleges three general areas of violation and we will use that framework to structure this Memorandum.

 I. 1992 - 1993 MEGACENTER EXPANSION

 The first question we ask is, what is a planned renovation operation. The NESHAPS define a planned renovation operation as a "renovation operation, or a number of such operations, in which some [Regulated Asbestos-Containing Material] RACM will be removed or stripped and that can be predicted. Individual nonscheduled operations are included if a number of such operations can be predicted to occur during a given period of time based on operating experience." 40 C.F.R. § 61.141.

 Plaintiff reads this definition to include all renovation activities that are planned together and taken as a part of a larger project. With this reading, he contends that all of the projects that Defendant treated as part of its 1992-1993 MegaCenter Expansion comprise one planned renovation operation.

 For the purposes of understanding the following discussion, it is not necessary to know what each project was, but simply to understand that Defendant had possession of the sixth floor of 401 North Broad Street in 1980. From 1981 on, it leased additional space and conducted renovations in a piece-meal fashion. In 1991, Defendant and its contractors determined that in order to best serve the future needs of the company, it was necessary to create a Master Plan to govern all future renovations. To that end, Defendant and several contractors met over a series of months to plan the MegaCenter Expansion on the Sixth and Seventh floors.

 According to Defendant's records, the projects making up the MegaCenter Expansion were:

 #1 UPS, Sixth Floor/Seventh Floor

 #2 Sixth Floor Renovations

 #3 Ready-Conditioned Expansion, Seventh Floor

 #4 Lobby/Administration, Seventh Floor UPS (Phase 2), Site Prep.

 #5 Seventh Floor, T&O Conversion Services

 #6 Sixth Floor, Phase II (including corridor flooring)

 #7 Mezzanine Package

 #8 Seventh Floor, T&O Conversion (Northside)

 #9 UPS (Phase III, Generator and Loading Dock)

 Defendant's records demonstrate that although each project was individually priced and scheduled, the entire project was coordinated together. Therefore, Plaintiff maintains, they comprise one planned renovation operation.

 In contrast, Defendant contends that a planned renovation operation is any discrete renovation project. It stresses the fact that the above-mentioned projects were individually priced, scheduled and budgeted and maintains that this shows that they were independent renovation operations. For this reason, Defendant argues that the analysis is ...


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