Petition for Writ of Certiorari — Walsh v. United States
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931316 JAN 1 419%.
OFFICE OF THE CLERK
No.
SUPREME COURT OF THE UNITED STATES
OF AMERICA
OCTOBER TERM, 1993
JAMES A. WALSH, Petitioner,
Vv.
UNITED STATES.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
RHYS A. STERLING, P.E., J.D.
Rhys A. Sterling, WSBA #13846
Attorney for Petitioner
20526 298th Avenue S.E.
P.O. Box 218
Hobart, Washington 98025-0218
206-432-9348 or 206-646-2886
Fax 206-646-346,
QUESTIONS PRESENTED FOR REVIEW
2. Is judicial review preclusion under
the Clean Air Act, 42 U.S.C. Section 7607
(b)(2), an unconstitutional denial of due
process as applied to prohibit an individ-
ual against whom the United States commen-
ced an enforcement action seeking substan-
tial civil penalties from challenging the
validity of the regulations sought to be
enforced against him and who (a) was nei-
ther in nor associated with anyone in the
asbestos abatement business within 60 days
of the date that the Asbestos NESHAP regu-
lations were promulgated in 1984 and (b)
raised the constitutional question and the
validity issue as an affirmative defense
in his answer to the United States’ com-
plaint filed in 1989?
Se May civil penalties under the Clean
Air Act, 42 U.S.C. Sections 7412(c) and
7413(b), be imposed only where an emission
of air pollutants to the ambient air
(i.e., air outside of buildings) is shown
by a preponderance of the evidence, and
the non-compliance with Asbestos NESHAP
work practice standards is, all by itself,
an insufficient basis upon which to impose
penalties under the Act?
ae a ee cm ee cee oe
ee ee ee ee ne ee ne me ee ree
TABLE OF CONTENTS
Page
~ k + |
Be REPORTS OF OPINIONS DELIVERED
BELOW eer eee at ee A alee els 1
ie STATEMENT OF JURISDICTIONAL
GROUNDS a EEE
III. STATUTORY AND REGULATORY
ES eee
IV. STATEMENT OF THE CASE > ae ee ae
BASES FOR FEDERAL COURT
ee ee te ee . lUlwlyl,lCUG
LITIGATION BACKGROUND ae
PROCEDURAL BACKGROUND ae 11
PROMULGATION OF THE ASBESTOS
NESHAP REGULATIONS ...... 13
THE ASBESTOS NESHAP PROVISIONS
OF THE CLEAN AIR ACT ARE
ENFORCED AS A STRICT LIABILITY
Pro soe Boe + e © « « « 14
CONSTITUTIONAL CHALLENGE TO
REVIEW PRECLUSION RAISED IN
ee ee
WALSH CONTENDS THAT MORE THAN
NONCOMPLIANCE WITH WORK PRACTICE
STANDARDS IS REQUIRED BY LAW TO
PETITION FOR WRIT OF
CERTIORARI--PAGE i
IMPOSE CIVIL PENALTIES UNDER THE
Cia meee ee Soc. et eh es te ws (UT
GOVERNMENT FAILED TO PROVE THAT
THERE WAS AN EMISSION OF ASBESTOS
TO THE AMBIENT AIR AS REQUIRED TO
BE SHOWN FOR A VIOLATION OF THE
CLEAN AIR ACT’S SECTION 7412
(OPER? + an ve a. eee ie or ce | 47
THE CLEAN AIR ACT REQUIRES BOTH
(1) NON-COMPLIANCE WITH WORK
PRACTICE STANDARDS AND (2) THE
EMISSION OF AIR POLLUTANTS TO
THE AMBIENT AIR, AS LEGAL PRE-
REQUISITES TO THE IMPOSITION
OF MONETARY PENALTIES .... 21
THE NINTH CIRCUIT COURT OF
APPEALS RULED THAT WALSH WAS
PRECLUDED BY OPERATION OF 42
U.S.C. SECTION 7607(B) FROM
CHALLENGING THE ASBESTOS
NESHAP AND THE MANNER IN
WHICH THOSE LAWS WERE APPLIED
oO Be 6s ea eee ea ee el el CU
CASE STATEMENT SUMMARY .... 26
ARGUMENT IN SUPPORT OF ISSUANCE
OF A WRIT OF CERTIORARI .... 27
BASIS FOR SEEKING ISSUANCE
ee oe eee ew Cee es sD
MODERN REVIEW PRECLUSION UNDER
THE CLEAN AIR ACT AND OTHER
ACTS HAS NEVER BEEN SQUARELY
ADDRESSED BY THIS COURT ... 28
PETITION FOR WRIT OF
CERTIORARI--PAGE ii
ALTHOUGH LOWER COURTS EXPRESS
CONCERN OVER THE ''NAGGING
PRESENCE OF A SUBSTANTIAL DUE
PROCESS QUESTION" RAISED BY THE
REVIEW PRECLUSION PROVISIONS OF
THE CLEAN AIR ACT AND OTHER ACTS
OF CONGRESS, THEY HAVE NONETHE-
LESS ALSO SIDESTEPPED A DIRECT
CONSTITUTIONAL CONFRONTATION BY
RESORT TO TECHNIQUES OF NARROW
Cleemeeseew 6. se ee sms 2 el 8
THIS COURT’S DECISION IN YAKUS
V. UNITED STATES APPEARS TO BE
THE COURT’S LAST REAL EFFORT AT
PASSING ON THE CONSTITUTIONALITY
OF THE REVIEW PRECLUSION
ee ee a a a nF
THIS COURT AND OTHERS HAVE
ACKNOWLEDGED THAT THE YAKUS
HOLDING AFFIRMING THE REVIEW
PRECLUSION PROVISION OF THE
1942 EMERGENCY PRICE CONTROL
ACT IS ARGUABLY DISTINGUISHABLE
FROM SIMILAR PROVISIONS UNDER
THE CLEAN AIR ACT AND OTHER NON-
WAR POWER ACTS OF CONGRESS .. 35
THE YAKUS DECISION HAS BEEN THE
FOUNDATION FOR SUBSEQUENT APPEL-
LATE COURT DECISIONS APPLYING THE
REVIEW PRECLUSION PROVISIONS OF
ee eee a ee |
THE CIRCUMSTANCES IN BOTH YAKUS
AND ETHYL CORP. ARE CLEARLY AND
CRITICALLY DISTINGUISHABLE FROM
THE CIRCUMSTANCES IN WALSH’S
PETITION FOR WRIT OF
CERTIORARI--PAGE iii
|
CASE--DISTINCTIONS THAT ARE MOST
DEFINITELY WORTHY OF A DIFFERENT
| Ud eee ae ee ee |
INDIVIDUALS HAVING NO OWNERSHIP
INTEREST IN THE ASBESTOS ABATE-
MENT BUSINESS FOR WHOM THEY ARE
EMPLOYED ARE NOW CLEARLY AT RISK
OF FACING SUBSTANTIAL MONETARY
PENALTIES IMPOSED UPON THEM UNDER
A STRICT LIABILITY LAW AND REGULA-
i ee ee ee ee ee
THE ADMINISTRATIVE CONFERENCE OF
THE UNITED STATES PREVIOUSLY HAS
CONCLUDED THAT REVIEW PRECLUSION
IS AN UNUSUAL AND UNNECESSARY
HARSH RESTRICTION ON THE RIGHT TO
CHALLENGE THE VALIDITY OF A REGULA-
TION TO WHICH ONE IS SUBJECT . 41
THE CLEAN AIR ACT CLEARLY REQUIRES
THAT AN EMISSION OF AN AIR POLLUT-
ANT TO THE AIR OUTSIDE OF BUILDINGS
MUST BE SHOWN AS A PREREQUISITE TO
IMPOSING CIVIL PENALTIES UPON ANY
PAs ass lis (Oks ee 45
Vis QUO Ss ae kh . a 49
APPENDICES
Appendix A Published Opinion of the
Ninth Circuit Court of
Appeals
Appendix B Decisions of the United
States District Court (W.D.
Wash., at Seattle)
PETITION FOR WRIT OF
CERTIORARI--PAGE iv
Se
TABLE OF AUTHORITIES
Page
2 Ss NSTITU N
U. S. Const. amend. V. <2 ae 15, 16
U. S. SUPREME COURT
Adamo Wrecking Co. v. United States,
434 U.S. 275, 54 L.Ed.2d 538, 98
S.Ct. $66 (1978) .... 25, 28, 31, 36
Betts v. Brady, 316 U.S. 455, 86 L.Ed.
Tene, Be 8.Ce. 1288 C1908). 5s es (OT
Crandon v. United States, 494 U.S.
152, 108 L.Ed.2d 132, 110 S.Ct. 997
(1990) “cs ts ae eee Ae se we)! EG
Federal Communications Commission v.
American Broadcasting Company, 347 U.S.
284, 98 L.Ed. 699, 74 S.Ct. 593
(1954) . rye ee se Ve a
Federal Crop Insurance Corporation v.
Merrill, 332 U.S. 380, 92 L.Ed. 10, 68
a Tee we GS | ts STR set Eee ee co ef
H. J. Inc. v. Northwestern Bell Telephone
Company, 492 U.S. 229, 106 L.Ed.2d 195,
oO «Gare eee Se ere eae, ala 14
Harrison v. PPG Industries, Inc., 446
U.S. 578, 64 L.Ed.2d 525, 100 S.Ct.
1889 (1980) ries Se tar a eee
Kinsella v. United States, 361 U.S. 234,
4 L.Ed.2d 268, 80 S.Ct. 297 (1960) . 41
PETITION FOR WRIT OF
CERTIORARI--PAGE v
Se neh
Parklane Hosiery Company v. Shore, 439
U.S. 322, 58 L.Ed.2d 557, 99 S.Ct. 645
(1979) oe ee ee ee ee
United States v. Klein, 80 U.S. 128,
20 L.Ed. 519 (1872) ke ey a ee cet
Yakus v. United States, 321 U.S. 414,
88 L.Ed. 834, 64 S.Ct. 660 (1944)
i Rae 29, 32-35, 37, 38, 49
- S. COURT OF APPEAL
Battaglia v. neral Motors Corp.,
169 F.2d 254 (26 Cir. 1948) .... 43
Chrysler Corporation v. Environmental
Protection Agency, 600 F.2d 904
(3.0 ees. ss Sok oo ew at, 36
District of Columbia v. Train,
ee BS ae |
First National Bank of Gordon v.
Department of the Treasury, 911 F.2d
57 (8th Cir. 1990) 14
General Motors Corporation v.
Ruckelshaus, 724 F.2d 979
OT
Idaho Department of Health and
Welfare v. United a D rtment
of Energy, 959 F.2d 149 (9th Cir.
1992) 68> So PS eet ele Sar eat 48
PETITION FOR WRIT OF
CERTIORARI--PAGE vi
r r n ncil
In Vv ni nvironmental
Pr ion ncy, 507 F.2d 905
ok |
United States v. Ethyl Corp.,
761 F.2d 1153 (5th Cir. 1985) . . 36-38
United States v a yw Edible
Oil Products, Inc. 926 F.2d 584
Co FS. oS ee eee ee |
United States v. Walsh, 8 F.3d 659
(9th Cir. 1993) “a o « #9, 36
Utah International, Inc. v. E.P.A.,
S76 ¥.40 Vee (16th Cif. 1973) ... 32
West Penn Power Co. v. Train,
see 9.46 304 (3r@ Cir. 1975) ... 31-32
Yellow Bus Lines, Inc. v. Drivers,
Chauffeurs & Helpers Local Union 639,
eee Be ee) ) eT
- DISTRI URT
United States v. Louisville Edible
Oil Products, Inc., 773 F. Supp. 15
OS ee ee ee eee |.
United States v. MPM Contractors,
Inc., 31 ERC 1550 (D.Kan. 1990) . 22, 49
nit t v. MPM ntractors
Inc., 32 ERC 1276 (D.Kan. 1990) ... 22
PETITION FOR WRIT OF
CERTIORARI--PAGE vii
United States v. Sealtite Corpcr-
ation, 739 F. Supp. 464 (E.D.Ark.
1990) “tae a ae ee ee eee
United
States v. Walsh, 783 F. Supp.
546 (W.D.Wash. 1991)
28 U.S.
28 U.S.
se U8.
42 U.S.
42 U.S.
42 U.S.
42 U.S.
42 U.S.
42 U.S.
42 U.S.
42 U.S.
FEDERAL STATUTES
Section 1254(1)
Section 1291
Section 1369(b)(2)
Section 4915(a)
Section 6976
Section 7401 et seq.
Section 7412 (1983)
ty &, Be DB
Section 7413 (1983)
Section 7602 (1983)
Section 7607(b) (1983)
2, 16, 23-25, 28-31,
Section 9613(a)
FEDERAL COURT RULES
FRAP 4(a)(1)
Fed. R. Evid. 201(b)
PETITION FOR WRIT OF
CERTIORARI--PAGE viii
14
10
26
Supreme Court Rule i0.1(c)
Supreme Court Rule 13.1
FEDERAL REGULATIONS
1 C.F.R. Section 301.2 (1993)
1 C.F.R. Section 305.76-4 (1977)
1 C.F.R. Section 305.82-7 (1983)
40 C.F.R. Section 50.1(e) (1983)
40 C.F.R. Part 61 (1984) ... 9, 13,
40 C.F.R. Section 61.141 (1984)
40 C.F.R. Section 61.147 (1984) .. 6,
OTHER AUTHORITIES
70 C.J.S. Penalties Sections 2 and 5
See ore ob ee a a ana 1§,
Currie, Judicial Review Under Federal
Pollution Laws, 62 Iowa L. Rev. 1221
Seeeetree 6 bh 8 eb ee ee ee” OR
EPA New Release 93-81 (12/20/93)
41 Fed. Reg. 56767 (12/30/76)
47 Fed. Reg. 58208 (12/30/82)
49 Fed. Reg. 13658 (4/5/84)
4 Weinstein’s Evidence, Hearsay
Section 803(10)[01] (1988)
PETITION FOR WRIT OF
CERTIORARI--PAGE ix
28
48
I. REPORTS OF OPINIONS DELIVERED BELOW
The decision of the United States
District Court for Western Washington,
Thomas S. Zilly, Judge, is reported in
United States v. Walsh, 783 F. Supp. 546
(W.D.Wash. 1991).
The decision of the United States
Court of Appeals for the Ninth Circuit,
Noonan, J., is reported in United States
v. Walsh, 8 F.3d 659 (9th Cir. 1993).'
II. STATEMENT OF JURISDICTIONAL GROUNDS
The opinion of the Ninth Circuit
Court of Appeals was filed October 26,
1993.
The jurisdiction of this Court is
grounded upon 28 U.S.C. Section 1254(1)
and Supreme Court Rule 13.1.
' There are only two parties to the
proceeding in the Ninth Circuit Court of Appeals
that is sought to be reviewed by this Court. They
are (a) the Petitioner James A. Walsh and (b) the
United States of America.
PETITION FOR WRIT OF
CERTIORARI--PAGE 1 OF 51
IIl. TA RY REGULATORY PROVISION
A. 42 U.S.C. Section 7607(b) (1983):
"(1) A petition for review of action
of the Administrator in promulgating any
national primary or secondary ambient air
quality standard, any emission standard or
requirement under section 7412 of this
title, any standard of performance or
requirement under section 7411 of this
title, any standard under section 7521 of
this title (other than a standard required
to be prescribed under section 7521(b)(1)
of this title), any determination under
section 7521(b)(5) of this title, any
control or prohibition under section 7545
of this title, any standard under section
7571 of this title, any rule issued under
section 7413, 7419, or under section 7420
of this title, or any other nationally
applicable regulations promuigated, or
final action taken, by the Administrator
under this chapter may be filed only in
the United States Court of Appeals for the
District of Columbia. A petition for
review of the Administrator’s action in
approving or promulgating any implement-
ation plan under section 7410 of this
title or section 7411(d) of this title,
any order under section 7411(4) of this
title, under section 7412(c) of this
title, under section 7413(d) of this
title, under section 7419 of this title,
Or under section 7420 of this title, or
his action under section 1857c-10(c) (2)
(A), (B), or (C) of this title (as in
effect before August 7, 1977) or under
regulations thereunder, or any other final
PETITION FOR WRIT OF
CERTIORARI--PAGE 2 OF 51
action of the Administrator under this
chapter (including any denial or disap-
proval by the Administrator under _ sub-
chapter I of this chapter) which is
locally or regionally applicable may be
filed only in the United States Court of
Appeals for the appropriate circuit.
Notwithstanding the preceding sentence a
petition for review of any action referred
to in such sentence may be filed only in
the United States Court of Appeals for the
District of Columbia if such action is
based on a determination of nationwide
scope or effect and if in taking such
action the Administrator finds and
publishes that such action is based on
such a determination. Any petition for
review under this subsection shall be
filed within sixty days from the date
notice of such promulgation, approval, or
action appears in the Federal Register,
except that if such petition is based
solely on grounds arising after such
sixtieth day, then any petition for review
under this subsection shall be filed
within sixty days after such grounds
arise.
(2) Action of the Administrator with
respect to which review could have been
obtained under paragraph (1) shall not be
subject to judicial review in civil or
criminal proceedings for enforcement."
B. 42 U.S.C. Section 7413(b) (1983):
"The Administrator shall, in the case
of any person which is the owner or opera-
tor of a major stationary source, and may,
PETITION FOR WRIT OF
CERTIORARI--PAGE 3 OF 51
in the case of any other person, commence
a civil action for a permanent or tempor-
ary injunction, or to assess and recover a
Civil penalty of not more than $25,000 per
day of violation, or both, whenever such
person--
(3) violates section 7411(e), section
7412(c), section 1857c-10(g) of this title
(as in effect before August 7, 1977),
subsection (d)(5) of this section (relat-
ing to coal conversion), section 7624 of
this title (relating to cost of certain
vapor recovery), section 7419 of this
title (relating to smelter orders), or any
regulation under part B of this subchapter
(relating to ozone)[.]"
C. 42 U.S.C. Section 7412(c) (1983):
"(1) After the effective date of any
emission standard under this section--
(A) no person may construct any new
source or modify any existing source
which, in the Administrator’s judgment,
will emit an air pollutant to which such
standard applies unless the Administrator
finds that such source if properly oper-
ated will not cause emissions in violation
of such standard, and
(B) no air pollutant to which such
standard applies may be emitted from any
stationary source in violation of such
standard, except that in the case of an
existing source--
PETITION FOR WRIT OF
CERTIORARI--PAGE 4 OF 51
(i) such standard shall not
apply until 90 days after its effective
date, and
(ii) the Administrator may
grant a waiver permitting such source a
period of up to two years after the
effective date of a standard to comply
with the standard, if he finds that such
period is necessary for the installation
of controls and that steps will be taken
during the period of the waiver to assure
that the health of persons will be pro-
tected from imminent endangerment."
D. 42 U.S.C. Section 7412(e) (1983):
"(5) Any design, equipment, work
practice, or operational standard, or any
combination thereof, described in this
subsection shall be treated as an emission
standard for purposes of the provisions of
this chapter (other than the provisions of
this subsection)."
E. 42 U.S.C. Section 7602 (1983):
"(g) The term ‘air pollutant’ means
any air pollution agent or combination of
such agents, including any physical, chem-
ical, biological, radioactive (including
source material, special nuclear material,
and byproduct material) substance or
matter which is emitted into or otherwise
enters the ambient air."
PETITION FOR WRIT OF
CERTIORARI--PAGE 5 OF 51
"(k) The terms ‘emission limitation’
and 'emission standard’ mean a requirement
established by the State or the Adminis-
trator which limits the quantity, rate, or
concentration of emissions of air pollut-
ants on a continuous basis, including any
requirement relating to the operation or
maintenance of a source to assure contin-
uous emission reduction."
F. 40 C.F.R. Section 61.147 (1984):
"Each owner or operator to whom this
section applies shall comply with the
following procedures to prevent emissions
of particulate asbestos material to the
outside air:
(c) Adequately wet friable asbestos
materials when they are being stripped
from facility components before the mem-
bers are removed from the facility. In
renovation operations, wetting that would
unavoidably damage equipment is not re-
quired if the owner or operator:
(1) Asks the Administrator to
determine whether wetting to comply with
this paragraph would unavoidably damage
equipment, and, before beginning to strip,
supplies the Administrator with adequate
information to make this determination;
and
(2) When the Administrator does
determine that equipment damage would be
unavoidable, uses a local exhaust ventil-
ation and collection system designed and
operated to capture the particulate asbes-
PETITION FOR WRIT OF
CERTIORARI--PAGE 6 OF 51
'
tos material produced by the stripping and
removal of the friable asbestos materials.
The system must exhibit no visible emis-
sions to the outside air or be designed
and operated in accordance with the re-
quirements in [section] 61.154.
(e) For friable asbestos materials
that have been removed or stripped:
(1) Adequately wet the mater-
ials to ensure that they remain wet until
they are collected for disposal in accord-
ance with [section] 61.152; and
(2) Carefully lower the mater-
ials to the ground or a lower floor, not
dropping or throwing them; and
(3) Transport the materials to
the ground via dust-tight chutes or con-
tainers if they have been removed or
stripped more than 50 feet above ground
level and were not removed as unites or in
sections."
G. 40 C.F.R. Section 61.141 (1984):
"Outside air means the air outside
buildings and structures."
H. 40 C.F.R. Section 50.1(e) (1983):
"Ambient air means that portion of
the atmosphere, external to buildings, to
which the general public has access."
PETITION FOR WRIT OF
CERTIORARI--PAGE 7 OF 51
IV. STATEMENT OF THE CASE
BASES FOR FEDERAL COURT JURISDICTION
This case was Originally brought in
the District Court for Western Washington
at Seattle by the United States against
James A. Walsh seeking civil penalties and
injunctive relief under the Clean Air Act,
42 U.S.C. Section 7401 et seq.?
The District Court had subject matter
jurisdiction over this action pursuant to
42 U.S.C. Section 7413(b). The District
Court’s judgment was Orally announced on
November 20, 1991 and was formally entered
on November 26, 1991.3
Walsh appealed the District Court’s
é The Clean Air Act was amended in 1990.
However, the United States stipulated that the pre-
1990 amendments version of the Clean Air Act would
apply to this case.
3 This judgment and the subsequent injunctive
relief entered on January 6, 1992 completed the
District Court's disposition of this matter with
respect to all parties and all claims before it.
PETITION FOR WRIT OF
CERTIORARI--PAGE 8 OF 51
eo
final judgment to the Ninth Circuit Court
of Appeals by filing a notice of appeal in
the District Court on January 15, 1992.‘
The Court of Appeals had jurisdiction over
the appeal pursuant to 28 U.S.C. Section
1291 and FRAP 4(a)(1).
LITIGATION BACKGROUND
This action was one of 13 suits that
the United States commenced in 11 states
on August 22, 1989 alleging violations of
the Asbestos NESHAP.° Those 13 actions
sought substantial civil penalties against
45 companies and individuals for allegedly
4 Because the United States is a party, the
notice of appeal was timely filed under FRAP
4(a)(1).
5 The "Asbestos NESHAP" refers to the
National Emission Standards for Hazardous Air
Pollutants under 42 U.S.C. Section 7412, and
administrative regulations promulgated by the
United States Environmental Protection Agency
("EPA") under 40 C.F.R. Part 61, Subpart M,
relating to asbestos abatement projects.
PETITION FOR WRIT OF
CERTIORARI--PAGE 9 OF 51
’
violating the Asbestos NESHAP.°®
This action was brought by the United
States against (1) Savage Enterprises,
Inc., a Washington corporation ("Savage
Enterprises"),’ (2) James J. Savage,
individually and as an officer of Savage
8
Enterprises ("'Savage"),”° and (3) James A.
Walsh, individually and as an officer of
6 It is appropriate to note at this juncture
that Walsh was the only non-owner corporate
employee named in any of those various lawsuits
commenced by the United States. The United States
admits that (a) at no time did Walsh have any
ownership interest in Savage Enterprises and (b)
Walsh, individually or otherwise, has at no time
had any ownership or leasehold interest in any of
the buildings or projects associated with the
United States' claims. Judge Zilly noted that our
case was perhaps the first instance where the
United States sought civil penalties against a non-
Owner for alleged violations of the asbestos
NESHAP. United States v. Walsh, 783 F. Supp. 546,
553 (W.D.Wash. 1991).
? This action was commenced n
Savage Enterprises' administrative dissolution and
its filing for Chapter 7 bankruptcy.
8 Subsequent to his purchasing all stock that
had been issued to Judith E. Hjort, Savage became
the sole shareholder in Savage Enterprises. This
action was commenced subsequent to Savage's filing
for Chapter 7 bankruptcy.
PETITION FOR WRIT OF
CERTIORARI--PAGE 10 OF 51
a 2
Savage Enterprises ("Walsh"). A consent
decree was entered by the trial court on
September 13, 1991 that resolved all of
the United States’ claims against Savage
Enterprises and Savage.’ Walsh remained
as the only defendant in this’ action
against whom the United States’ claims had
not been fully resolved prior to trial.
PROCEDURAL BACKGROUND
The United States originally sought
to impose civil penalties against Walsh
that could total almost $4.25 million,
alleging (1) seven different projects that
had Asbestos NESHAP violations and (2) one
9 The September 13, 1991 consent decree
required Savage to pay $5,000.00 in twenty equal
quarterly installments. This payment constituted
full satisfaction of all United States' claims
against Savage and Savage Enterprises.
10 The United States Originally alleged that
Walsh violated the Asbestos NESHAP over a period
spanning at least 170 days. The maximum civil
penalty is $25,000 per day for each violation. 42
U.S.C. Section 7413({b).
PETITION FOR WRIT OF
CERTIORARI--PAGE 11 OF 51
violation of an EPA order.'' Walsh filed
a motion for summary judgment and, on May
30, 1991 the trial court dismissed two of
the United States’ claims.'* Several days
prior to trial, the government voluntarily
dismissed two more claims." Following
five days of trial, Judge Zilly dismissed
two more claims,'* but found Walsh liable
"| The united States originally alleged that
Walsh violated the August 15, 1985 Compliance Order
and Request for Information (No. 1085-08-30-
113/114) issued by the EPA to Savage Enterprises
and Rainier Bank. However, Walsh was not
individually named as a party in the Order.
12 The two claims dismissed on summary
judgment by the trial court were (a) the alleged
Asbestos NESHAP violations at the Kent School
District's O'Brien School because the United States
failed to present any proof that Savage Enterprises
stripped and removed more than the regulatory
threshold quantity of friable asbestos at the
facility and (b) the EPA Compliance Order because
Walsh was not a party subject to the Order.
'3 These claims stemmed from alleged Asbestos
NESHAP violations occurring at the Rainier National
Bank's branch office in the Everett and at the 2121
Terry Avenue office building in Seattle.
‘4 These claims stemmed from alleged Asbestos
NESHAP violations occurring at the Northshore
School District's Woodinville/Sorenson School and
at the 1104 N.E. 47th Street apartment building.
PETITION FOR WRIT OF
CERTIORARI--PAGE 12 OF 51
on two claims.'> Thus, when all was said
and done, Walsh prevailed on six of the
eight claims originally brought against
him by the United States.
PROMULGATION OF THE ASBESTOS NESHAP
REGULATIONS
The Asbestos NESHAP- regulations’®
that apply to our case were promulgated as
a final rule by the EPA Administrator on
April 5, 1984. 49 Fed. Reg. 13658 (April
5, 1984). Sixty days thereafter was June
4, 1984. This was a full 9 months prior
to the date that your Petitioner, James A.
Walsh, first became involved in or in any
way associated with the asbestos abatement
business. It was not until August 22,
'S These claims stemmed from alleged Asbestos
NESHAP violations occurring at the Seattle-Tacoma
International Airport ("Sea-Tac Airport") and at
the Washington State Department of Transportation's
Crab Pot Restaurant in Seattle ("Crab Pot"). Walsh
was ordered to pay a civil penalty of $3,000.
16 40 C.F.R. Part 61, Subpart M (National
Emission Standards for Asbestos).
PETITION FOR WRIT OF
CERTIORARI--PAGE 13 OF 51
1989 that Walsh, confronted with an unbe-
lievably staggering potential civil lia-
bility in the form of monetary penalties
imposed under a strict liability law, in
fact had any reason whatsoever to raise in
any forum the questions he now presents to
this Court for resolution.
THE ASBESTOS NESHAP PROVISIONS OF THE
CLEAN AIR ACT ARE ENFORCED AS A STRICT
LIABILITY PENAL LAW
The Asbestos NESHAP is a strict lia-
bility law.'’ Strict liability penal laws
are subject to (1) the rule of lenity even
though only civil penalties are imposed, "®
7 uni Vv. lti rporation, 739
F. Supp. 464, 468 (E.D.Ark. 1990).
18 Crandon v. United States, 494 U.S. 152,
168, 108 L.Ed.2d 132, 110 S.Ct. 997 (1990); H. J.
Inc. v. Northwestern Bell Telephone Company, 492
U.S. 229, 255, 106 L.Ed.2d 195, 109 S.Ct. 2893
(1989) (Scalia, eee a eg = r mm -
ion mmi Ameri Br i
Company, 347 U.S. +384 356 98 L. Ea. _— 74S. ce
593 (1954); Yellow Bus Lines, Inc. v. Drivers,
hauff Helper nion , 913 F.2d 948,
955-56 (D.C.Cir. 1990); First National Bank of
rdon v. D men f Tr ry, 911 F.2d 57,
65 (8th Cir. 1990).
PETITION FOR WRIT OF
CERTIORARI--PAGE 14 OF 51
and (2) other general rules of statutory
construction intended to afford the person
against whom the government seeks to
impose monetary penalties fairness and
substantial justice, i.e., due process.'’
It is very well to say that
those who deal with the Govern-
ment should turn square corners.
But there is no reason why the
square corners should constitute
a one-way street.
Federal Crop Insurance Corp. v. Merrill,
332 U.S. 380, 387-88, 92 L.Ed. 10, 68
S.Ct. 1 (1947) (Jackson, J., dissenting).
CONSTITUTIONAL CHALLENGE TO REVIEW
PRECLUSION RAISED IN WALSH’S ANSWER
In Walsh’s answer to the government’s
complaint for civil penalties under the
Clean Air Act, 42 U.S.C. Sections 7413(b)
(3) and 7412(c)(1), he asserted as an
affirmative defense that the Act’s review
'9 uU. S. Const. amend. v. See, e.g., 70
C.J.S. Penalties Sections 2 and 5 (1987).
PETITION FOR WRIT OF
CERTIORARI--PAGE 15 OF 51
preclusion provision, 42 U.S.C. Section
7607(b),
15.
was unconstitutional as applied:
Because 42 U.S.C. Section
7607(b)(2) purports to prevent
Walsh from raising certain
defenses in this action, Walsh
asserts that such statute is
unconstitutional as applied to
him as a denial of due process
and equal protection.
16.
Walsh asserts that the
regulations alleged by the USA
to have been violated by him in
his
individual and/or his
alleged corporate capacity are
invalid and/or void as arbitrary
or capricious, contrary to law
and/or adopted in excess of the
statutory authority of the
Environmental Protection Agency
under the Clean Air Act, 42
U.S.C. Section 7401 et seq.
Accordingly, the USA is not
entitled to the relief sought
against Walsh as an individual
and/or in his alleged corporate
Capacity.
Answer And Defenses Of Defendant James A.
Walsh. °°
20 U.S. Const. amend. v. Worthy of notice,
Walsh's answer was filed in the U.S. District Court
for Western Washington within 60 days from the date
that the government served its complaint upon him.
PETITION FOR WRIT OF
cd
CERTIORARI--PAGE 16 OF 51
WALSH INTENDS THAT THAN LI-
ANCE WITH WORK PRACTICE STANDARDS IS
REQUIRED BY LA I E CIVIL P TIES
UNDER THE CLEAN AIR ACT
In both the District Court and the
Court of Appeals, Walsh continued to raise
his challenge to the application of the
Asbestos NESHAP to him by asserting that
there can be no violation of the Clean Air
Act by the mere noncompliance with work
practice standards and that in order to
impose civil penalties under the Act, the
government must prove by a preponderance
of the evidence that there is both (1) the
violation of a work practice standard and
(2) the emission of asbestos to the air
outside of the buildings within which the
asbestos abatement work was conducted.
GOVERNMENT FAILED TO PROVE THAT THERE WAS
AN EM I F BE THE AMBIENT AIR
IRED BE SH FOR A VI TI OF
THE CLEAN AIR ACT’S SECTION 7412(C)(1)
Walsh introduced evidence during the
PETITION FOR WRIT OF
CERTIORARI--PAGE 17 OF 51
trial that clearly demonstrated that there
was no proof of any emissions of asbestos
materials to the ambient air at the Sea-
Tac Airport and the Crab Pot Restaurant
projects. No where in any of the official
written inspection reports kept by any of
the government inspectors who testified in
this case is there any eyewitness account
Or any measurements made of any (1) dust
emissions during the course of stripping
Or removal work or (2) visible emissions
of asbestos-containing material to the air
outside of the buildings within which
Savage Enterprises was stripping and
removing asbestos.°' There also are no
21 There are absolutely no air monitoring
results indicative of (or even remotely in the same
ball park as) "dry removal" of asbestos. Nor are
there any measurements taken of the ambient air
showing any emissions of asbestos during the course
of stripping and removal. Likewise, there are no
measurements taken of the ambient air prior to
Savage Enterprises undertaking its abatement work
to establish the background levels of asbestos, if
any, at either Sea-Tac Airport or the Crab Pot.
PETITION FOR WRIT OF
CERTIORARI--PAGE 18 OF 51
reel
written records that describe either (1)
breaches in the negative air enclosure or
(2) any asbestos-containing material lying
outside of any building. The absence of
any written recordings of these events is
competent evidence of the non-occurrence
of such events.
[I]f a duty exists to record
certain matters when they occur,
and if no record of such matters
is found, then the absence of
any entry about them is evidence
that they did not occur; oF, to
put it another way, the record,
taken as a whole, is evidence
that the matters recorded, and
those only occurred.
4 Weinstein’s Evidence, Hearsay Section
803(10)[01] (1988). Thus, in the trial
court record is substantial competent evi-
dence contrary to the trial court’s erron-
eous finding that emissions occurred and
proves that (1) no dust emissions during
stripping and removal operations ever in
PETITION FOR WRIT OF
CERTIORARI--PAGE 19 OF 51
fact occurred® and (2) no emissions of
asbestos to the ambient air ever in fact
occurred. *
Nonetheless, both the District Court
and the Court of Appeals ruled that
liability under the Clean Air Act was
grounded on the mere noncompliance with
the work practice standards set forth in
the Asbestos NESHAP and the emission of
air pollutants to the ambient air need not
be proven for the United States to impose
Civil penalties upon Walsh. The lower
courts took this position notwithstanding
the clear and unambiguous requirements of
42 U.S.C. Section 7412(c)(1).
¢2 Thus, all of the asbestos that Savage
Enterprises stripped and removed at Sea-Tac Airport
and the Crab Pot Restaurant was "adequately wetted”
as required by the Asbestos NESHAP regulations.
23 Walsh contends that there can be no
violation of the Clean Air Act nor the imposition
of civil penalties stemming from the mere technical
violation of work practice standards.
PETITION FOR WRIT OF
CERTIORARI--PAGE 20 OF 51
aaa eae laaieie nial
R_A RE 1 =
L ITH RK ARD
2) THE EMISSI F
THE AMBIENT AIR, AS LEGAL PREREQUISITES TO
THE IMPOSITION OF MONETARY PENALTIES
The Asbestos NESHAP regulations set
forth in 40 C.F.R. Part 61, Subpart M, are
not self-executing. No where in the Clean
Air Act is the mere non-compliance with
work practice standards made a violation
of law for which civil penalties may be
imposed. The Clean Air Act requires that
there be an emission in violation of an
emission standard in order for penalties
to be imposed upon an owner or operator.
The courts have thus misconstrued the
interrelationship of work practice stand-
ards, as emission standards, and the en-
forcement provisions of the Clean Air Act,
that mandates an emission of an air pol-
lutant into the ambient air in violation
of an emission standard as a prerequisite
PETITION FOR WRIT OF
CERTIORARI--PAGE 21 OF 51
to imposing penalties under the Act.”
4 There is one reasoned decision that for
only a brief time addressed the "linkage doctrine".
United States v. MPM Contractors, Inc., 31 ERC 1550
(D.Kan. 1990), vacated on reconsideration, 32 ERC
1276 (D.Kan. 1990). Wals as assert that the
underlined words correctly state the rule of law
that more than mere technical violation of the
Asbestos NESHAP work practice standards must be
shown in order to violate the Clean Air Act:
[The United States] must prove
Causation. In articulating the
essentia elements of plaintiff's
claims against MPM, the court is aware
both of plaintiff's desire to prevent
harm to the environment before it
takes place and of MPM's desire not to
be fined for an inchoate violation of
section 61.147. With these
considerations in mind, gd that
plaintiff must show thai
fi condi
documented at [the various sites],
defendant either did cause or, but for
the corrective action ordered by the
[government] inspectors, would have
caused particulate asbestos material
m air
dur; (to
violati i 1.147 rc
after removal _(to h
violation of Section 61.147(e)).
MPM Contractors, 31 ERC at 1552 (emphasis added).
This "linkage doctrine" is premised upon the simple
fact that the Asbestos NESHAP regulations are not
seif-executing with respect to the imposition of
Civil penalties. Without the emission of air
1 for i r
pollutants to the ambient air, there is no basis in
iaw for imposing civil penalties merely for non-
li i rk pr i “
PETITION FOR WRIT OF
CERTIORARI--PAGE 22 OF 51
THE NINTH CIRCUIT COURT OF APPEALS RULED
THAT WALSH WAS PRECLUDED BY OPERATION OF
42 U.S.C. SECTION 7607(B) FROM CHALLENGING
THE _ASBESTOS NESHAP AND THE MANNER IN
WHICH THOSE LAWS WERE APPLIED TO HIM
Walsh’s contention that the Clean Air
Act requires more than mere non-compliance
with work practice standards fell on deaf
ears. The District Court held that the
emission of asbestos to the ambient air
need not be proven and that all that the
law requires is proof of the violation of
the work practice standards.*° On appeal,
however, the government finally interposed
an objection to Walsh’s linkage contention
on the ground that he was precluded from
challenging the validity of the Asbestos
NESHAP regulations by operation of 42
eS The District Court allowed Walsh to pre-
sent evidence and legal argument in support of his
theory that the government could not prevail with-
out proof of asbestos emissions to the ambient air.
Thus, the District Court sidestepped the issue pre-
sented by 42 U.S.C. Section 7607(b) and avoided the
constitutional confrontation raised by Walsh in his
answer.
PETITION FOR WRIT OF
CERTIORARI--PAGE 23 OF 51
’
U.S.C. Section 7607(b)(2). The Court of
Appeals during oral arguments expressed
reservation about applying such a judicial
review preclusion statute to Walsh under
circumstances where the regulations were
admittedly promulgated at a time when he
was not even in the asbestos business and,
therefore, lacked standing or any reason
whatsoever to contest them. Nonetheless,
the Court of Appeals ultimately decided
that 7607(b) barred its intervention at
this juncture and declined to review the
linkage issue raised by Walsh.*
None of Walsh’s arguments as to
the substantive violations of
the Act are without force.
26 The Ninth Circuit Court of Appeals
declined to rule on Walsh's contentions based upon
what it perceived to be the "uncontested fact" that
there were other asbestos abatement businesses in
operation during the 60 day review period following
the Asbestos NESHAP regulations' promulgation in
1984 that could have sought review had they so
desired. However, Walsh was involved in a rest-
aurant at that time and did not have any assoc-
iation with any asbestos abatement business.
PETITION FOR WRIT OF
CERTIORARI--PAGE 24 OF 51
Nonetheless, none of them in the
end are persuasive. We consider
them in turn with this preamble:
Congress has provided that
judicial review of the standards
set by the EPA must be sought
only in the United States Court
of Appeals for the District of
Columbia within 60 days of the
notice of promulgation of the
standards. 42 U.S.C. [Section]
7607(b). Walsh challenges this
limitation on judicial review,
noting that he himself was not
even in the asbestos removal
business at the time the regu-
lations were promulgated. We
take judicial notice, however,
that there were many asbestos
removal companies in operation
at the time of the promulgation
of the regulations and that they
had motive and opportunity to
challenge the regulations if
they were unreasonable. There
is nothing to prevent Congress
from providing a single national
forum for the litigation of such
standards. Adamo Wrecking Co.
v. United States, 434 U.S. 275,
284 (1978).
United States v. Walsh, 8 F.3d 659, 664
PETITION FOR WRIT OF
CERTIORARI--PAGE 25 OF 51
(9th Cir. 1993).*’ The Court of Appeals
thus slammed its judicial door in Walsh’s
face.
CASE STATEMENT SUMMARY
Walsh has properly raised the linkage
issue that exists for the imposition of
Civil penalties under the Clean Air Act
for the alleged violation of work practice
standards and has preserved it for review
7? The Court of Appeals took the liberty of
taking "judicial notice" of the "fact" that there
were purportedly many asbestos removal companies in
operation in 1984 that had motive and opportunity
to seek promulgation review in the D.C. Circuit
Court of Appeals. Judicial notice is appropriate
only where the "fact" noticed is not subject to
dispute and can be readily ascertained. Fed. R.
Evid. 201(b). There was absolutely no testimony
ever taken or reference made during trial or at any
other stage as to the number of asbestos removal
companies in operation in 1984. Walsh has no way
of knowing the accuracy of this statement. More
important, Walsh was in no way in privity with or
in any manner associated with such businesses in
1984. Thus, Walsh had absolutely no standing to
seek promulgation review in the D.C. Circuit in
1984. 42 U.S.C. Section 7607(b)(1) did not alter
the fundamental rules regarding the judicial review
of administrative actions and the need for a proper
party to challenge such actions; i.e., standing.
See N ral R r fen il, Inc. v.
ni vironmental Pr ion Agency, 507
F.2d 905, 908-909 (Sth Cir. 1974).
PETITION FOR WRIT OF
CERTIORARI--PAGE 26 OF 51
by this Court. This Court should seize
the opportunity to delve into this issue
with the scrutiny that it and the people
who are and will be affected by government
enforcement of the NESHAP regulations
truly deserve.
V. ARGUMENT IN SUPPORT OF ISSUANCE OF A
WRIT OF CERTIORARI
BASIS FOR SEEKING ISSUANCE OF WRIT
Walsh respectfully asks this Court to
issue a writ of certiorari and review the
Ninth Circuit Court of Appeal’s decision
in this case because, holding as it did
that the review preclusion provisions of
the Clean Air Act prohibited its
consideration of Walsh’s challenge to the
manner in which the Asbestos NESHAP
regulations were being construed and
applied to him under his unique
circumstances, the Court of Appeals
PETITION FOR WRIT OF
CERTIORARI--PAGE 27 OF 51
"decided an important question of federal
law which has not been, but should be,
settled by this Court." Supreme Court
Rule 10.1(c) (italics added).
MODERN REVIEW PRECLUSION UNDER THE CLEAN
AIR _ ACT R_A R_ BEEN
SQUARELY ADDRESSED BY THIS COURT
This Court has clearly acknowledged
that there exists a serious constitutional
issue with respect to the Clean Air Act’s
judicial review preclusion provision under
42 U.S.C. Section 7607(b)(2).
If the constitutional validity
of [Section] 307(b) of the Clean
Air Act had been raised by
petitioner, I think it would
have merited serious consider-
ation.
Adamo Wrecking Co. v. United States, 434
U.S. 275, 289, 54 L.Ed.2d 538, 98 S.ct.
566 (1978) (Powell, J., concurring).
Nonetheless, this Court has sidestepped a
confrontation with the review preclusion
PETITION FOR WRIT OF
CERTIORARI--PAGE 28 OF 51
i
issue thus far by concluding that either
the issue was not properly raised by the
petitioner or that it need not be resolved
in the particular case under review.
Harrison v. PPG Industries, Inc., 446 U.S.
592 n. 9, 64 L.Ed@.2d 525, 100 S.Ct.
578,
The respondents also argue that
a literal construction of
[Section] 307(b)(1) would vio-
late due process of law. This
argument turns on the _ inter-
relationship between [Section]
307(b)(1) and its companion
provision, [Section] 307(b)(2)
‘ To preclude a defendant
in a civil or criminal enforce-
ment proceeding from attacking
the validity of informal action
on the part of the Administrator
would, in the respondents’ view,
violate the defendant’s due
process right to a "reasonable
opportunity to be heard and
present evidence." Yakus_yv.
Uni tates, 321 US 414, 433,
88 L Ed 834, 64 S Ct 660, 28
Ohio Ops 220. The short answer
to the respondents’ argument is
that the validity of [Section]
307(b)(2) is not at issue here.
The constitutional question
raised by the respondents aust,
therefore, await another day.
PETITION FOR WRIT OF
CERTIORARI--PAGE 29 OF 51
a
ee
1889 (1980) (emphasis and italics added).
Justice Powell continued to express his
strong reservations with respect to the
constitutionality of the review preclusion
provisions of the Clean Air Act’s Section
7607(b)(2). Harrison, 446 U.S. at 594
(Powell, J., concurring).
ALTH T B
THE "NA DUE
PROCE T ‘a
The lower courts have recognized that
the review preclusion provisions in Acts
28
of Congress®™ pose a "nagging presence of
6 The Clean Air Act's Section 7607(b)(2) is
not unique. Other Acts of Congress also contain
Similar judicial review preclusion provisions. See
42 U.S.C. Section 4915(a) (Noise Control Act); 33
U.S.C. Section 1369(b)(2) (Federal Water Pollution
Control Act); 42 U.S.C. Section 6976 (Solid Waste
Disposal Act); 42 U.S.C. Section 9613(a) (CERCLA).
PETITION FOR WRIT OF
CERTIORARI--PAGE 30 OF 51
|
a substantial due process question".”
Nonetheless, these courts too have effec-
tively avoided resolving the constitu-
tional issue posed by review preclusion
provisions by either sidestepping it
altogether” or by narrowly construing the
circumstances under Section 7607(b)(1)
which would give rise to review preclusion
under 7607(b)(2).°"
29 Chrysler Corporation v. Environmental
Protection Agency, 600 F.2d 904, 913 (D.C. Cir.
1979).
30 "The Supreme Court has previously taken
note of the constitutional problems that review
limitations such as Section 307(b) may present.
See, e.g., Harrison v. PPG Indus., Inc., 446 U.S.
578, 592 n. 9, 100 S.Ct. 1889, 1897 n. 9, 64
L.Ed.2d 525 (1980) (opinion of the Court); id. at
594-95, 100 S.Ct. at 1898-99 (Powell, J., concur-
ring opinion); Adamo Wrecking Co. v. United States,
434 U.S. 275, 289-91, 98 S.Ct. 566, 575-76, 54
L.Ed.2d 538 (1978) (Powell, J., concurring opin-
ion). The issue, however, has not thus far arisen
in a posture that would permit its resolution, nor
does it so arise in this case." General Motors
Corporation v. Ruckelshaus, 724 F.2d 979, 984 n. 30
(D.C. Cir. 1983) (emphasis and italics added).
31 District of Columbia v. Train, 533 F.2d
1250 (1976) (challenge to a consent agreement does
not trigger 307(b)(1) jurisdiction) ; West Penn
(continued... )
PETITION FOR WRIT OF
CERTIORARI--PAGE 31 OF 51
en
THI T’S D
TATES APP :
EFFORT A I I
OF THE REVIEW PRECLUSION QUESTION
The singular prior decision of this
Court that has seemingly formed a road-
block to a concerted effort aimed at a
formal and final resolution of the review
preclusion constitutional question raised
herein is that of Yakus v. United States,
321 U.S. 414, 88 L.Ed. 834, 64 S.Ct. 660
(1944). In Yakus, this Court held that
the review preclusion provisions of the
1942 Emergency Price Control Act were not,
under the war-time circumstances in which
31(.. continued)
Power Co. v. Train, 522 F.2d 302, 309 (3rd Cir.
1975), cert. denied, 426 U.S. 947 (1976) (action
for declaratory judgment that power company was not
violating sulfur emission standards was a challenge
to methods of compliance, not to plan itself, and
thus did not constitute challenge to approval or
promulgation of implementation plan); Utah Interna-
tional, Inc. v. E.P.A., 478 F.2d 126 (10th Cir.
1973) (challenge to an EPA order disapproving
previously approved portions of state plan did not
constitute challenge to approval or promulgation of
implementation plan).
PETITION FOR WRIT OF
CERTIORARI--PAGE 32 OF 51
italics added).
application under consideration by
Court at the time, unconstitutional:
Such a procedure [i.e., resort
to a single court for the pur-
pose of contesting the validity
of regulations within a_ set
period of time], so long as it
affords to those affected a
reasonable opportunity to be
heard and present evidence, does
not offend against due process.
, 321 U.S. at 433 (emphasis
and pointed:
It is one thing for Congress to
withhold jurisdiction. It is
entirely another to confer it
and direct that it be exercised
in a manner inconsistent with
constitutional requirements or,
what in some instances may be
the same thing, without regard
to them. Once it is held that
Congress can require the courts
criminally to enforce unconsti-
tutional laws or statutes, in-
cluding regulations, or to do so
without regard for their validi-
ty, the way will have been found
PETITION FOR WRIT OF
CERTIORARI--PAGE 33 OF 51
the Act was passed and in the particular
the
and
The dissenting opinions
in the Yakus decision were both eloquent
to circumvent the supreme law
and, what is more, to make the
courts parties in doing so.
This Congress cannot do. .
(W]henever the judicial power is
called into play, it is respon-
sible directly to the fundament-
al law and no other authority
can intervene to force or auth-
orize the judicial body to dis-
regard it. The problem there-
fore is not solely one of indi-
vidual right or due process of
law. It is equally one of the
separation and independence of
the powers of government and of
the constitutional integrity of
the judicial process
Yakus, 321 U.S. at 468 (Rutledge, J.,
dissenting) .*
What can only be deemed as
"crystal ball" precision, Justice Rutledge
accurately prognosticated the inclusion of
review preclusion provisions by Congress
in subsequent enactments:
32 Yakus was a case in which the criminal
enforcement-prong of review preclusion was
addressed. Nonetheless, the dissenting opinion
still bears a strong message as it relates to
Walsh's case. Albeit not a criminal proceeding,
the government sought to enforce civil penalties
under a strict liability law and regulations=i.e.,
a penal set of laws.
PETITION FOR WRIT OF
CERTIORARI--PAGE 34 OF 51
Once approved [i.e., judicial
review preclusion], it is bound
to spawn progeny.
Id. at 483. It has indeed!
DISTINGUISHABLE FROM SIMILAR PROVISIONS
UNDER THE CLEAN AIR ACT AND OTHER NON-WAR
POWER ACTS OF CONGRESS
This Court has acknowledged that the
holding of Yakus may now be outdated and,
thus, deserving of a new look:
Although I express no considered
judgment, I think Yakus is at
least arguably distinguishable.
The statute there came before
the Court during World War II,
and it can be viewed as a valid
exercise of the war powers of
Congress under Art I [Section] 8
of the Constitution. .. . As
important as environmental
concerns are to the country,
they are not comparable--in
terms of an emergency justifying
the short-cutting of normal due
process rights--to the need for
national mobilization in wartime
of economic as well as military
activity.
PETITION FOR WRIT OF
CERTIORARI--PAGE 35 OF 51
Adamo Wrecking, 434 U.S. at 290 (Powell,
J., concurring).’’ Fifty years of living
under Yakus has been much too long a time
for such an important constitutional issue
to remain unrevisited by this Court.
THE YAKUS DECISION HAS BEEN THE FOUNDATION
FOR SUBSEQUENT APPELLATE COURT DECISIONS
APPLYING THE REVIEW PRECLUSION PROVISIONS
OF THE CLEAN AIR ACT
The Ninth Circuit Court of Appeals
relied on United States v. Ethyl Corp.,
761 F.2d 1153 (5th Cir. 1985), cert,
denied, 474 U.S. 1070 (1986), in conclud-
ing that "it is too late for Walsh to
challenge [the Asbestos NESHAP regula-
tions] in this enforcement proceeding.”
Walsh, 8 F.3d at 664. The Ethyl Corp.
court, as other courts before it, based
its decision to decline review of EPA’s
regulations during a civil enforcement
33 See also Chrysler Corporation, 600 F.2d at
973.
PETITION FOR WRIT OF
CERTIORARI--PAGE 36 OF 51
proceeding upon this Court’s holding in
Yakus. Ethyl Corp., 761 F.2d at 1156-57.
CORP, ARE CLEARLY AND CRITICALLY DISTING-
UISHABLE FROM THE CIRCUMSTANCES IN WALSH’ S
CASE--DISTINCTIONS THAT ARE MOST DEF INITE-
LY WORTHY OF A DIFFERENT OUTCOME
It is absolutely critical to note,
however, that in the Ethyl Corp. case as
in the Yakus case, the defendants against
whom the government was enforcing its
regulations were in fact actively engaged
in the regulated business at the time the
regulations were passed. In Yakus, the
individuals against whom enforcement was
commenced did not seek review, although
they had reason and opportunity to do so.
In Ethyl Corp., the court specifically
noted that each of the companies against
whom the EPA commenced enforcement actions
was on actual notice and participated in
the comment proceedings that accompanied
PETITION FOR WRIT OF
CERTIORARI--PAGE 37 OF 51
the promulgation of the regulations.“ To
preclude review under these circumstances
may be appropriate.* However, in direct
contrast to the defendants in Yakus and
Ethyl Corp., Walsh neither (1) was in the
asbestos abatement business at the time
the Asbestos NESHAP regulations were prom-
ulgated nor (2) had actual notice of and
participated in the comment period. Due
process is patently offended by precluding
an individual, such as Walsh, from raising
a challenge to invalid regulations during
an enforcement proceeding seeking substan-
tial penalties under such circumstances. ~~
4 Ethyl Corp., 761 F.2d at 1157 n. 8.
°° Review preclusion under such circumstances
would thus be akin to the review preclusion
doctrines of res judicata and collateral estoppel.
%© By analogy, Walsh's lack of participation
in a Civil iawsuit would not preclude him from
raising issues of law that had been litigated
therein provided he was not in privity with or
substantially related tu one of the actual parties
(continued... )
PETITION FOR WRIT OF
CERTIORARI--PAGE 38 OF 51
According to the Regional Counsel’s
office for the Environmental Protection
Agency in Seattle:
The Walsh case is the first time
the courts have clearly stated
that someone who works for an
asbestos contractor, but who
does not have an ownership in-
terest in the company, is liable
for violations of the federal
asbestos rules on premises un-
dergoing renovation or demoli-
tion. The decision to uphold
the precedent’ setting 1991
ruling [of the U.S. District
Court] puts employees of asbes-
tos abatement contractors on
notice that they, too, face
judgments against them if they
are responsible for violations
of the regulations.
%(. . continued)
involved in the lawsuit. Clearly, "it is a
violation of due process for a judgment to be
binding on a litigant who was not a party or a
privy and therefore has never had an opportunity to
be heard." Parklane Hosiery Company v. Shore, 439
U.S. 322, 327 n. 7, 56 L.EBd.2d 552, 99 S.Ct. 645
(1979) (emphasis and italics added).
PETITION FOR WRIT OF
CERTIORARI--PAGE 39 OF 51
EPA News Release 93-81 (December 20,
1993).
Now, more clearly than ever, non-
Owner employees will be held liable for
monetary penalties under the Clean Air
Act. However, unless this Court decides
to review the questions raised by Walsh in
this Petition, they will all face such
penalties with not one hand, but both
hands tied behind their backs because they
cannot challenge the very regulations that
they are now alleged to have violated
Simply because they did not do so in 1984
or whenever the pertinent regulations were
promulgated! Such inequity cries out as
foul and as patently unfair when applied
blindly, without regard to the specific
and unique circumstances of each case!
Due process is offended in a manner that
is clear and unequivocal:
PETITION FOR WRIT OF
CERTIORARI--PAGE 40 OF 51
ef
Due process .. . [deals with]
the denial of that "fundamental
fairness, shocking to the
universal sense of justice."
Betts v. Brady, 316 US 455, 462,
86 L ed 1595, 1601, 62 S Ct 1252
(1942).
Kinsella v. United States, 361 U.S. 234,
246, 4 L.Ed.2d 268, 80 S.Ct. 297 (1960).
THE ADMINISTRATIVE CONFERENCE OF THE
UNITED STATES PREVIOUSLY HAS CONCLUDED
THA IEW PRE I IS AN AL AND
UNNE ARY HARSH RESTRICTI N THE RIGHT
TO CHALLENGE THE VALIDIT. OF A REGULATION
TO WHICH ONE IS SUBJECT
The Administrative Conference of the
United States*’ originally concluded that
“the express preclusion of review at the
enforcement stage creates a highly unusual
and unnecessary harsh restriction on the
37 The Administrative Conference of the
United States is a permanent independent adminis-
trative agency of the Federal Government whose
purpose is to "develop improvements in the legal
procedures by which Federal agencies administer
regulatory, benefit, and other Government
programs." 1 C.F.R. Section 301.2 (1993). This
forum is intended to produce recommendations for
"improving the fairness and effectiveness of such
procedures." Id.
PETITION FOR WRIT OF
CERTIORARI--PAGE 41 OF 51
right to challenge the validity of a regu-
lation to which one is subject." 41 Fed.
Reg. 56767, 56768 (December 30, 1976).*
In fact, the Conference’ specifically
called upon Congress to amend the offen-
Sive Acts "to allow the validity of a
regulation to be challenged in defense to
an enforcement proceeding." Id. at para.
D(1).
This view has been echoed in writings
by learned scholars. See Currie, Judicial
Review Under Federal Pollution Laws, 62
Iowa L. Rev. 1221 (1976-77). Professor
Currie recognized that review preclusion
would operate so as to "make invalidity
unavailable as a defense to persons who
went into the affected business, moved
into the affected area, or indeed were
born after the [specified review time]
38 Codified in 1 C.F.R. Section 305.76-4.
PETITION FOR WRIT OF
CERTIORARI--PAGE 42 OF 51
To
period." Id. at 1258. The affront to due
process principles is obvious. Professor
Currie urged that "as implied in Yakus, to
impose sanctions upon one who has never
had a fair opportunity to Challenge the
regulation under which he is charged is to
deprive him of property without due pro-
cess of law." Id. at 1259.°9
Even in its 1982 reassessment of the
judicial review preclusion question, the
Administrative Conference still recommend-
ed to Congress that it amend its Acts so
as to lessen the harsh results and unfair-
ness that stem from the blind application
of review preclusion to every individual
who is subject to an enforcement action:
39 "That the congressional authority over
federal-court jurisdiction cannot be so exercised
as to deny constitutionally guaranteed rights I
consider established by United States v. Klein, 80
U.S. (13 Wall) 128 (1872); accord, Battaglia v.
neral Motor mp., 169 F.2d 254, 257 (260 Cir.
1948)." Currie, 62 Iowa L. Rev. at 1259 n. 268.
PETITION FOR WRIT OF
CERTIORARI--PAGE 43 OF 51
When Congress decides to limit
the availability of judicial
review of rules at the enforce-
ment stage, it should ordinarily
preclude review only of issues
relating to procedures employed
in the rulemaking or the adequa-
cy of factual support for the
rule in the administrative
record. Judicial review of
issues relating to the constitu-
tional basis for the rule or the
application of the rule to a
particular respondent or defen-
dant should be permitted when
these issues are raised in sub-
sequent suits or as defenses to
subsequent enforcement (subject
to the principles of collateral
estoppel and stare decisis).
47 Fed. Reg. 58208, 58210 (December 30,
1982) .“°
Congress has thus far not taken the
Administrative Conference’s recommenda-
tions to heart. Nonetheless, based on the
above-presented arguments embodying well-
established principles of due process,
equal protection, and the separation of
40 Codified in 1 C.F.R. Section 305.82-7.
PETITION FOR WRIT OF
CERTIORARI--PAGE 44 OF 51
powers, this Court should squarely con-
front the review preclusion question and
finally resolve the issues presented in
this Petition For Writ Of Certiorari.
THE CLEAN AIR ACT CLEARLY REQUIRES THAT AN
EMISSI F AIR LL THE AIR
OUTSIDE OF BUILDINGS MUST BE SHOWN AS A
PREREQUISITE TO IMPOSING CIVIL PENALTIES
UPON ANY PERSON
What makes the review preclusion
question raised by Walsh in this case even
more imperative to be resolved by this
Court is the glaring misinterpretation of
the Clean Air Act’s enforcement provisions
where NESHAP work practice standards are
involved. All of the District Courts,
Save one but only for a brief moment, have
construed the Asbestos NESHAP provisions
of the Clean Air Act in such a manner as
to make civil penalties self-executing
upon a mere showing that the work practice
standards have been violated. Only once
PETITION FOR WRIT OF
CERTIORARI--PAGE 45 OF 51
in the Clean Air Act’s history prior to
Walsh’s case has the specific issue raised
by Walsh even been tangentially mentioned
by a Court of Appeals. In United States
v. Louisville Edible Oil Products, Inc.,
926 F.2d 584 (6th Cir. 1991), in a most
curious statement, and notably without any
legal analysis, the Court of Appeals noted
that "[{a] conviction under the Clean Air
Act requires the government to prove
either that defendants emitted asbestos
into the atmosphere or that they violated
the work practice standards adopted by the
#4) How-
Environmental Protection Agency.
ever, the context in which the Sixth Cir-
cuit Court of Appeals made this observa-
41 31d. at 588 (emphasis added). In fact, the
Court of Appeals stated merely that "[wje agree
with the conclusion reached by the district court"
that violations are premised upon an either/or
proposition. The district court decision in this
case is set forth in United States v. Louisville
Edible Oil Products, Inc., 773 F. Supp. 15 (W.D.Ky.
1990).
PETITION FOR WRIT OF
CERTIORARI--PAGE 46 OF 51
tion was a criminal enforcement action and
a motion to dismiss on double jeopardy
grounds. The Louisville Edible Oil deci-
sion is neither dispositive of the issue
raised by Walsh nor is it persuasive auth-
ority due to its absolute paucity of legal
analysis. However, and this should be
judicially noted with raised eyebrows, the
Sixth Circuit Court of Appeals’ opinion
does imply that emission of asbestos to
the atmosphere will violate the Clean Air
Act even in those instances where there is
compliance with the work practice stan-
dards. Walsh’s construction of the law,
which he contends is the proper construc-
tion would require both (1) non-compli-
ance with work practice standards and (2)
emission of asbestos to the air outside of
PETITION FOR WRIT OF
CERTIORARI--PAGE 47 OF 51
buildings.“
In short, the "linkage" issue raised
by Walsh has not yet been "officially"
ruled on by any court. Where, as here, a
strict liability law is being applied to
subject businesses and individuals to sub-
stantial civil penalties, there arises a
crying need for the judiciary to get act-
ively involved in defining the proper con-
struction and scope of the law. Recall
that civil penalties are not favored in
the law and that individuals should be
punished only where the facts and the law
43
are crystal clear. Although the issues
42 Manifestly, the Clean Air Act is an out-
door ~~ get act, not an indoor air quality
act. e.g., Idaho Department of Health and
tO Vv. ‘united States Department of Energy, 959
F.2d 149 (9th Cir. 1992).
43 *Statu rovisi for lties must
be strictly construed, and... [i]t has been said
that such provisions gust not be construed to in-
clude anything beyond their letter even though
within their spirit." 70 C.J.S. Penalties Section
5 (emphasis and italics added).
PETITION FOR WRIT OF
CERTIORARI--PAGE 48 OF 51
arise in the public health arena, justice
nevertheless demands reasonable appli-
cation of the law where individuals are
singled-out for punishment.”
The only way for this Court to ad-
dress this question of statutory con-
struction is to overcome the bar placed by
the Clean Air Act’s review preclusion
provision set forth in 42 U.S.C. Section
7607(b) (2).
VI. CONCLUSIONS
The time for this Court to revisit
the judicial review preclusion avalanche
that was started with Yakus has finally
come. Walsh has done everything within
his power to set forth and preserve his
“4 If the Clean Air Act itself may be con-
strued to require more than mere technical viola-
tion of the Asbestos NESHAP regulations, then under
the jurisprudence that has evolved with respect to
strict liability statutes, this Court must give the
benefit of any doubts to Walsh. Id. Cf£. MPM Con-
tractors, 31 ERC at 1552.
PETITION FOR WRIT OF
CERTIORARI--PAGE 49 OF 51
challenges to (1) the constitutionality of
the review preclusion provision set forth
in the Clean Air Act, 42 U.S.C. Section
7607(b)(2) and (2) the construction and
application of the Asbestos NESHAP regula-
tions in an enforcement proceeding seeking
civil penalties. Due process principles,
together with principles of separation of
powers and equal protection, are substan-
tially offended and violated by the blind
application of review preclusion to Walsh
under his circumstances.
We pray that this Court applies its
discretion in recognition of all of these
aspects and grants Walsh’s Petition For
Writ Of Certiorari to review the questions
raised herein.
PETITION FOR WRIT OF
CERTIORARI--PAGE 50 OF 51
th
DATED this Ss day of January,
1994.
Respectfully submitted,
RHYS A. STERLING, P.E., J.D.
Rhys A. Sterling
WSBA #13846
Attorney for Petitioner,
James A. Walsh
/,
20526 298th Avenue S.E.
P.O. Box 218
Hobart, Washington 98025-0218
206-432-9348 or 206-646-2886
Fax 206-646-3467
PETITION FOR WRIT OF
CERTIORARI--PAGE 51 OF 51
APPENDICES
APPENDIX _A
CONSISTS OF THE FOLLOWING
11 +#£xPAGES (FRONT / BACK)
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
——s
UntreD STATES OF AMERICA,
Plaintiff-Appellee,
v.
JaMES WALSH, as individual and as
officer of Savage Enterprise, Inc.,
Defendant-Appellant.
No. 92-35088
D.C. No.
CV-89-01263-TSZ
OPINION
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Argued and Submitted
September 3, 1993—Seattle, Washington
Filed October 26, 1993
Before: J. Clifford Wallace, Eugene A. Wright and
John T. Noonan, Jr., Circuit Judges.
Opinion by Judge Noonan
SUMMARY
Environmental Law/Asbestos/Alir
The court of appeals affirmed a Judgment. The court held,
among other things, that an on-site superintendant of an
asbestos removal project could properly be found liable as an
“owner or operator™ of a renovation or demolition Operation
for violations of the Clean Air Act.
12065
12066 Unrrep States v. WaLsH
Savage Enterprises, Inc. engaged in removing asbestos
from a location at the Seattle-Tacoma Airport (Sea-Tac) and
from the Crab Pot restaurant, in Seattle. Appellee, the United
States, filed a complaint against Savage Enterprises, against
James Savage (the company’s president) and appellant James
Walsh (a supervisory employee), alleging violations of the
Clean Air Act and the National Emission Standards for Haz-
ardous Air Pollutants for asbestos (NESHAP). Savage Enter-
prises and James Savage entered into a consent decree.
Walsh was tried and found liable for failing to follow
NESHAP procedures and for failing to insure that friable
asbestos materials remained wet until collected for disposal.
Walsh appealed, contending that he was not an “Operator”
within the meaning of the Act and that the government failed
to establish that he had committed substantive violations of
the Act.
(1] A relevant regulation defines as liable “any person who
owns, leases, operates, controls, or supervises a Stationary
source.” [2] On the Sea-Tac project, the district court found
that Walsh had the ability to correct the work and had the nec-
essary Control to be an operator under the Act. (3) At the Crab
Pot restaurant project, the district court found that Walsh held
himself out as being in charge and was in fact in charge. [4]
The district court correctly required substantial control in
holding Walsh was the operator of these removal projects
within the meaning of the Act.
(S] Walsh argued that emissions must reach the outside
area. This argument does not disturb the validity of the regu-
lations that he was found to have violated. The regulations
were not subject to challenge in this proceeding. [6] Walsh
also contended that there was no “modification” of a source
that increased the amount of air pollutant emitted by the
source because of his use of a negative air enclosure. [7] Suf-
ficient evidence showed that the negative enclosure did not
Succeed in preventing emissions. [8] Finally, the district
Unrrep States v. Wasu 12067
court's conclusion that the asbestos material was friable and
not adequately wetted was not Clearly erroneous.
COUNSEL
Rhys A. Sterling, Hobart, Washington, for the defendant-
appellant.
Andrew C. Mergen, Dept. of Justice, Environmental and Nat-
ural Resources Division, Washington D.C., for the plaintiff-
appellee.
OPINION
NOONAN, Circuit Judge:
James A. Walsh appeals the judgment of the district court
entered against him for violation of section 112 of the Clean
Air Act (the Act), 42 U.S.C. § 7412 (prior to its November
15, 1990 amendment), and the National Emission Standards
for Hazardous Air Pollutants for asbestos, 40 C.F.R. § 61,
Subpart M (NESHAP) (prior to its November 20, 1990
amendment). There is little published appellate authority on
the contentions raised in this appeal, and this case presents an
Opportunity to furnish more. We affirm the Judgment.
STATUTE
The Act, 42 U.S.C. § 7412, authorizes the Administrator of
the Environmental Protection Agency (EPA) to publish a list
of air pollutants EPA determines to be hazardous and to
describe the emission standards known as NESHAP for those
pollutants. Asbestos was listed as a hazardous air pollutant
and a NESHAP relating to asbestos was promulgated. See 140
C.F.R. §61, Subpart M. providing for the procedures to be
es
12068 Unrrep States v. WALSH
followed in the removal and disposal of materials containing
asbestos.
The Act provides that “any design equipment, work prac-
tice, Or operational standard, or any combination thereof,
described in this subsection shall be treated as an emission
standard for purposes of the provisions of this chapter.” 42
U.S.C. 7412(e)(S). The asbestos NESHAP requires the owner
Or operator of a renovation or demolition operation where
there is at least 260 linear feet of friable asbestos materials on
pipes or at least 160 square feet of asbestos on other compo-
nents of the facility, to notify the EPA; to comply with certain
procedures to prevent emission of particulate asbestos to the
outside air, to adequately wet friable asbestos materials when
they are being stripped; and to insure that the materials remain
wet unul they are collected for disposal. 40 C.F.R. § 61.145,
.146 and .147.
PROCEEDINGS
On August 22, 1989 the United States filed a complaint
against Savage Enterprises, Inc., against James Savage, and
against Walsh, seeking civil penalties and injunctive relief
under the Act, 42 U.S.C. § 7413, for seven violations of
NESHAP, promulgated under section 112 of the Act, 42
U.S.C. § 7412. On September 13, 1991 the district court
entered a consent decree resolving all claims against Savage
Enterprises and James Savage. Walsh went to trial on Novem-
ber 14, 1991. Three charges were dropped prior to trial, and
on two, after a five-day bench trial, the court entered judg-
ment for Walsh.
The two charges as to which Walsh was found liable are as
follows: (1) Between January 20, 1986 and April 15, 1986 he
engaged in removal of friable asbestos at the Seattle-Tacoma
Airport (Sea-Tac), Northwest Airlines offices, conducting a
dry removal of asbestos without following the procedures pre-
scribed for obtaining a waiver of the wetting requirement in
Unrrep STaTEs v. WaLsH 12069
violation of 40 C.F.R. § 61.147(c), and in violation of the
same regulation he failed to insure that friable asbestos mate-
rials at this site remained wet until collected for disposal. (2)
As the operator of an asbestos removal at the Crab Pot restau-
rant, Pier 52, Seattle, between July 17, 1986 and September
22, 1986, Walsh failed to insure that friable asbestos materials
remained wet until collected for disposal in violation of 40
C.F.R. § 61.147(e).
The court imposed a penalty of $3,500 and enjoined him
from performing further asbestos-removal projects for a two-
year period without complying with the Act and without noti-
fying the EPA.
Walsh appealed, raising a variety of issues.
ANALYSIS
1. Statute of Limitations
Walsh contends that the action of the United States is an
action for money damages brought by the United States and
founded on a tort, so that the three-year tort statute of limita-
tions applies, 28 U.S.C. § 2415(b). Walsh is in error. The gov-
emment’s action does not sound in tort but is for the
enforcement of a civil penalty. The appropriate statute is the
five-year statute of limitations. 28 U.S.C. § 2462.
2. Selective Prosecution
Walsh contends that he was singled out personally because
Savage Enterprises entered bankruptcy without paying any
Civil penalties and his prosecution was the only way the gov-
emment could “get even™ with Savage Enterprises. Walsh's
contention is unpersuasive. Savage Enterprises and its owner,
James Savage, were the Subject of the government complaint.
At trial on the witness stand Walsh conceded that he had no
12070 Unrrep States v. WaLsH
sense that he was being targeted. The contention of selective
prosecution is without merit.
3. Walsh's Liability As An Operator
{1} Walsh, who admittedly was not the owner of Savage
Enterprises, contends that he was not an Operator within the
meaning of the Act. He points to the preamble to the asbestos
section of NESHAP, 49 Fed. Reg. 13657, 13659 (April 5,
1984), stating that only the renovation contractor on a project
is intended to be held liable. The relevant regulations nonethe-
less define as liable “any person who owns, leases, operates,
controls, or supervises a stationary source.” 40 C.F.R.
§ 61.02. The district coun interpreted the regulation to apply
only to “a person having significant or substantial or real con-
trol and supervision over a project.” Applying that definition,
the district court found Walsh not to be liable as to two of the
projects as to which the government had charged him. In
making this determination, the district court found Walsh's
testimony as to all four projects “to be very credible,”
whereas it found “in contrast Mr. Savage's testimony to be
not credible.”
The district court noted that Savage Enterprises had
approximately 10 to 15 employees including its owner, James
Savage, as well as other people serving in some management
Capacity. In the period of the charged violations, Walsh first
served as an estimator for the company, then as vice president
of Savage Enterprises, and from March of 1987 to November
1987 as the company’s president. The district court found that
throughout this period James Savage himself was “the ulti-
mate person in control” and that the title given to Walsh was
“not necessarily indicative” of his authority.
[2] On the Sea-Tac project from January 4, 1986 through
Apnil 15, 1986, Walsh had the title of estimator. He wrote the
asbestos removal proposal to the general contractor for reno-
vation work at Sea-Tac. He also signed the Notice of Intent
Unrrep States v. Wasu 12071
to Remove Asbestos and the Amended Notice. He met with
4 representative of the Puget Sound Air Control Pollution
Authority on two occasions on which asbestos removal prob-
lems were discussed. He also dealt with an inspector for the
Port of Seattle in relation to asbestos problems. On the basis
of the testimony the district court concluded that Walsh “had
the ability to correct the work, he was the person having the
necessary control to be an operator under the Statute.”
all supervision of the project. He signed the Notice of Intent
to Remove Asbestos. The foreman of the project, Van Pham,
took directions from Walsh. If there were problems of calls by
workers or inspectors, Walsh admits that he would have dealt
with them. Walsh also testified in a hearing before the Depart-
ment of Labor and Industries of the State of Washington that
he was responsible for the Project. An inspector for the Port
of Seattle dealt with Walsh and believed that he was the proj-
ect superintendent. The court concluded that Walsh held him-
self out as being in charge and was in fact in charge.
Evidence of Walsh's responsibility as to the two locations
where he was not held liable stands in contrast to these find-
ings. At the Woodinville School Project between June 26 and
July 3, 1983 Walsh was the vice president and signed the con-
tract for removal by Savage Enterprises. But Esther Miller
was the estimator and the one responsible for solving prob-
lems during the course of the work, and Joe Silva was the
foreman. Walsh was not present at the site. At the removal
project at 1104 Northeast 47th Street, Seattle, Walsh was
President but did not do the estimating and, as found by the
district court, “was never on the job site while the work was
being performed.”
[4] We conclude that there was no clear error in the district
court's findings of fact that Walsh was the operator on the
12072 Unrrep States v. WaLsH
Sea-Tac and Crab Pot projects. and conclude as a matter of
law that the district count correctly required “substantial™ con-
trol in holding Walsh was “the operator” of these removal
projects within the meaning of the Act.
4. Substantive Violations of the Act
Walsh makes three contentions. First, that to constitute an
“air pollutant” to which emission standards of the Act apply
there must exist some “substance or matter which is emitted
into or otherwise enters the ambient air.” 42 U.S.C. § 7602(g).
By the ambient air Walsh contends is meant air not within a
building but the unenclosed air outside. He cites Wisconsin
Electric Power Co. v. Reilly, 893 F.2d 901, 904 (7th Cir.
1990), which speaks of the emission of pollutants “into the
atmosphere.” He adds that there was no showing that the
emissions here entered the atmosphere, and he draws an anal-
Ogy with our treatment of state regulations in /daho Dep't of
Health and Welfare v. United States Dep't of Energy, 959
F.2d 149, 151 (9h Cir. 1992).
Second, he contends that what is prohibited under the Act
is action that would “modify” a “stationary source.” 42 U.S.C.
§ 7412(cM iA). A stationary source under the Act is “any
building, structure, facility, or installation which emits or may
emit any air pollutant.” 42 U.S.C. § 7411(aX3). A modifica-
tion of a stationary source is “any physical change in, or
change in the method of operation of, a Stationary source
which increases the amount of any air pollutant emitted by
such source or which results in the emission of any air pollu-
tant not previously emitted.” 42 U.S.C. § 741 1(a)(4). Savage
Enterprises stripped asbestos-containing material at Sea-Tac
and the Crab Pot within what is described as a “negative area
enclosure.” A negative area enclosure is a containment area
in which the air is filtered by a high efficiency particulate fil-
ter designed to remove very small particles of asbestos from
the air. After filtering, the air is exhausted to the inside of the
building. The negative pressure or static pressure in the
of
al
(rr oe «+ se
—-_
Unrrep States v. Watsn 12073
enclosed area is lower than that of the environment outside
the containment barriers. The pressure grading is maintained
by moving air from the work area to the environment outside
the area via power exhaust equipment at a rate that separates
the desired air flow and pressure differential. Walsh contends
that when a negative air enclosure is used there is no modifi-
cation to the existing source which increases the amount of air
pollutant emitted by the source.
Third, Walsh notes that Savage Enterprises was required by
the regulation to “adequately wet friable asbestos materials”
as they were being stripped and after they were stripped “to
insure that they remain wet” until they were collected for dis-
posal. 40 C.F.R. §61.147(c) and (e). Walsh contends that
there was no first-hand evidence that the matenals removed
at Sea-Tac were friable. The particular material removed was
not itself any longer available. Walsh points to his own testi-
mony that some of the material removed at Sea-Tac was
cementitious or, in other words, had the properties of cement
and would not have readily crumbled. He also contends there
was insufficient evidence that the material that was friable
was not adequately wet and that there could not have been
such proof without evidence of either dust emissions or visi-
ble emissions. He points to 40 C.F.R. § 61.141 which defines
as “adequately wet™ asbestos that is “sufficiently mixed or
coated with water or an aqueous solution to prevent dust
emissions.” He questions the commonsense conclusions of the
inspector who found that on rubbing the material with her
hands it crumbled and so in her estimation was friable.
None of Walsh's arguments as to the substantive violations
of the Act are without force. Nonetheless. none of them in the
end are persuasive. We consider them in tum with this pream-
ble: Congress has provided that judicial review of the stan-
dards set by the EPA must be sought only in the United States
Court of Appeals for the District of Columbia within 60 days
of the notice of promulgation of the standards. 42 U.S.C.
§ 7607(b). Walsh challenges this limitation on judicial review,
12074 Unrrep States v. WaLsH
noting that he himself was not even in the asbestos removal
business at the time the regulations were promulgated. We
take judicial notice, however, that there were many asbestos
removal companies in operation at the time of the promulga-
tion of the regulations and that they had motive and opportu-
nity to challenge the regulations if they were unreasonable.
There is nothing to prevent Congress from providing a single
national forum for the litigation of such standards. Adamo
Wrecking Co. v. United States, 434 U.S. 275, 284 (1978). We
turn to Walsh's specific arguments.
(S] First, the purpose of the work practice standards for
demolition and renovation involving asbestos is “to prevent
emissions of particulate asbestos material to the outside area,”
40 C.F.R. § 61.147, as Walsh himself contends. The agency
charged with enforcing the statute may take steps to prevent
asbestos emissions reaching the outside area. To achieve this
purpose, the EPA instituted the work practice rules. The regu-
lations were challengeable under the procedures and limits set
out in 42 U.S.C. § 7607(b\ 1). It is too late for Walsh to chal-
lenge them in this enforcement proceeding. /d. § 7607(b)(2);
see United States v. Ethyl Corp., 761 F.2d 1153, 1155 (Sth
Cir. 1985), cert. denied, 474 U.S. 1070 (1986). Walsh's
attempt to sidestep the work practice rules by his argument
that emissions must reach the outside area fails to disturb the
validity of the regulations that he is found to have violated.
He is liable for a dry removal without an EPA waiver and for
failing to keep asbestos material wet. The question of emis-
sion of an air pollutant to the ambient air is not relevant. The
violation of the work practice rule violates the statute.
[6] Second, “modification” of a source is but one of two
bases of liability under 42 U.S.C. § 7412(c)(1). Walsh might
be charged with either “modifying” a source, 42 U.S.C.
§ 7412(cX1)(A), or with emitting an air pollutant, 42 U.S.C.
§ 7412(cX 1B). The district court ruled that Walsh’s viola-
tion of work practice standards constituted an emission under
42 U.S.C. § 7412(c 1B). and did not discuss liability based
Unntp States v. WaLsH 12075
on a “modification” under 42 U.S.C. § 7412(c)(1)(A). Thus,
Walsh's argument that there was no modification when he
used a negative air enclosure is irrelevant to his liability for
emitting an air pollutant.
(7] Independent of its irrelevance, Walsh's argument fails
based on the facts of this case. The negative air enclosure did
not prevent a modification of the structure at Sea-Tac when
there was physical removal of asbestos from the structure,
According to testimony at the trial the System in place was
inadequate to keep asbestos emissions within the containment
area. Inspector Armina Nolan, whose tesumony the district
court found to be very credible, observed dry asbestos outside
the containment area and observed asbestos being tracked
through outside hallways. Carolyn Rankin, an engineer
employed by the airport, encountered asbestos Outside the
containment area. Kent Slater, a foreman with Savage Enter-
prises, testified that the negative enclosure area was inade-
quate and did not function properly. Sufficient evidence
showed that the negative enclosure did not succeed in pre-
venting emissions from the modification of the structure by
the removal of the asbestos.
(8) Third, five witnesses testified that the asbestos removed
from Sea-Tac was friable: Inspector Nolan, Inspector Rankin,
Inspector Davis, and the two Savage Enterprises employees,
Slater and Pham. The district court was in a posiuon to deter-
mine whether he would believe this testimony or the counter-
tesumony of Walsh, whom he generally found credible. We
are not in 4 position to second-guess the finding of the district
court that the material was friable and not adequately wetted.
Again, as to the Crab Pot, inspectors Nolan and Davis testi-
fied to friable material found on the site. The district court's
conclusion based on this lesumony is not clearly erroneous.
Accordingly, the judgment of the district court is
AFFIRMED.
APPENDIX B
CONSISTS OF THE FOLLOWING
54 PAGES (FRONT / BACK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
Civil Action
No. C89-12632Z
UNITED STATES OF
AMERICA,
PLAINTIFF,
OF FACT AND
CONCLUSIONS OF
LAW
JAMES A. WALSH’,
)
)
)
)
Vv. ) COURT’S FINDINGS
)
)
DEFENDANT. )
)
Announced On November 20, 1997.
Entered On November 26, 1997.
COURT’S FINDINGS OF FACT AND CONCLU-
SIONS OF LAW on November 20, 1991, by the
Honorable Thomas S. Zilly, United States
District Judge, at the United States
Courthouse, Seattle, Washington.
THE COURT: Please be seated, ladies
and gentlemen. Let me start by thanking
the lawyers for the excellent briefs that
have been presented prior to trial and the
thoughtful proposed Findings of Fact which
were presented by both sides, as well as
MEMORANDUM OPINION--PAGE 1
the presentation during the course of the
trial. The Court has benefited from both
the written materials that have been sub
mitted as well as what has been presented
here during the course of the trial.
I must say at the beginning that I
have been concerned about the nature of
the case in the sense that the government
has brought its full force, three lawyers
participating in the trial, we’re in our
fifth day of trial, originally seeking
Over $825,000 from a defendant who has
essentially no assets. And I have to tell
you that I’ve been concerned as we’ve gone
through this trial with the appropriate-
ness Of proceeding under all of those cir-
cumstances against this particular defen-
dant.
I do recognize, as I think all the
participants and the people who have ob-
MEMORANDUM OPINION--PAGE 2
served the case recognize, there are im-
portant issues of law, important princi-
ples that need to be established. And
this Court is here to hear those issues in
the appropriate case and to decide those
issues, and I intend to do so.
This memorandum opinion that I am
rendering will be intended to be my opin-
ion. My Findings of Fact and Conclusions
of Law pursuant to Rule 52 will be incor-
porated into my opinion today. I will not
be issuing separate or additional Findings
of Fact or Conclusions of Law.
This matter comes before the Court
after trial. The EPA seeks civil penal -
ties and injunctive relief against the de-
fendant, Mr. James A. Walsh, for violation
of the Clean Air Act and its regulations
arising from work performed by Savage En-
terprises on four jobs during the period
MEMORANDUM OPINION--PAGE 3
1986 and 1987.
Savage Enterprises, Inc., a Washing-
ton corporation, as well as Mr. James Sav~
age have both settled with the EPA and the
lone remaining defendant in this case is
Mr. Walsh.
I incorporate by reference all of the
admitted facts contained in the Pretrial
Order and they will be facts found for
purposes of my opinion.
The real question presented here is
whether Mr. Walsh’s activities make him
liable for the alleged violations and, of
course, were there sufficient violations
to subject Mr. Walsh to liability. The
regulations impose liability on an owner
or operator. These regulations define
owner or operator ‘as, "any “person who
owns, leases, operates, controls or super-
vises a stationary source," 40 CFR 61.02.
MEMORANDUM OPINION--PAGE 4
Each of the four locations in question, in
my opinion, constituted a stationary
source.
I have already ruled that even if Mr.
Walsh were not an owner, and nobody con-
tends that he was an owner, he could be
responsible if he was an operator if he
Supervised or controlled the work. I also
Stated in May of this year as a result of
motions for summary judgment that because
the statute and the regulations in ques-
tion impose strict liability, the Court
would be reluctant to impose liability un-
less it was clear that Mr. Walsh was sub-
stantially in control or substantially su-
pervised the various projects in question.
I recognize the government contends
that there is nothing that has to be sub-
stantial about the supervision, but I be-
lieve that what was intended here was a
MEMORANDUM OPINION--PAGE 5
\
person having significant or substantial
Or real control and supervision over a
project before he or she could be found
liable under these regulations if they
were not an owner. And it is my intention
to apply that test in determining the lia-
bility of this defendant.
Although Mr. Walsh’s job titles, he
was vice-president for a period of time,
he was president beginning, I believe, in
about March of 1987 through about November
of 1987, although those titles and his
Signing of various documents is some indi-
cation of his responsibilities and author-
ity, I believe a job by job analysis is
necessary before a decision can be
reached.
I must say before reviewing those
four jobs in question that I found on the
whole Mr. Walsh’s testimony to be very
MEMORANDUM OPINION--PAGE 6
credible. I also found in contrast mr.
Savage’s testimony to be not credible. It
differed substantially from his prior dep-
Osition testimony. And its lack of speci-
ficity brings this Court to conclude that
little, if any, reliance can be placed on
Mr. Savage’s testimony during the course
of the trial.
I also would like to note the probkew en f
in dealing with a small business of ten to
15 people. Savage Enterprises had approx-
imately ten to 15 employees. That includ-
ed the owner, Mr. Savage, and the other
people who served in some management capa-
City. These small companies don’t organ-
ize like large companies, and the lines of
authority and who is responsible and who
is not responsible is much more difficult
in a small operation.
I would also point out, of course, on
MEMORANDUM OPINION--PAGE 7
the other hand, the EPA is seeking to im-
pose penalties, and each employee seeks to
point to the other employee and say they’ -
re responsible. It’s kind of like a shell
game. The peanut is under one of the
shells and everybody is pointing at the
other shell and saying they are not re-
sponsible.
Mr. Savage was the owner of the busi-
ness and obviously was responsible. The
guestion is whether Mr. Walsh is also re-
sponsible. Mr. Walsh was an estimator
during his employment period with the com-
pany. Between May of ’86 and February of
‘87, he served as vice-president, and from
March of ‘87 to November of '87, he served
as president. Mr. Savage always continued
to be the ultimate person in control as
evidenced by the fact that he fired Mr.
Walsh at one point in the summer of 1988
MEMORANDUM OPINION--PAGE 8
and Mr. Walsh terminated his employment
with the company. As is the case with
many small companies, the title given to
the person is not necessarily indicative
of a person’s authority or lack of auth-
ority.
Let’s turn now to the four projects
in question. The first project I want to
discuss is the Sea-Tac project. It invol-
ved work at the Port of Seattle during the
period approximately January 4, 1986,
through April 15, 1986. Both Mr. Savage
and Mr. Walsh estimated the job. Mr.
Walsh wrote the letter proposal of January
4, 1986, which is exhibit 6, to the Elan
Construction Company, the general contrac-
tor for renovation work at Sea-Tac.
Mr. Walsh’s letter indicated that dry
removal may be used around the perimeter
walls of the work. There is a dispute as
MEMORANDUM OPINION--PAGE 9
to how much of the perimeter would be sub-
ject or possibly subject to dry removal.
Mr. Walsh has testified that he intended
it to be 12 inches, but then he also in-
tended not to use dry removal. I would
point out that the letter also states that
the work would be done in strict compli-
ance with all governmental rules and reg-
ulations. Mr. Walsh also signed the Not-
ice of Intent to Remove, exhibit 4, and
the Amended Notices, exhibit 5.
Between January 20 and April 15th,
the Savage Enterprise employees conducted
removal of asbestos from the Sea-Tac Air-
port project. During the project, Kent
Slater, the foreman, testified he discus-
sed the work with Mr. Walsh, took direc-
tions from him and Mr. Walsh directed dry
removal of asbestos around the perimeter
of the work area. I find that testimony
MEMORANDUM OPINION--PAGE 10
“ae
to be credible and make that finding. Mr.
Slater also testified and I find that dry,
friable material capable of crumbling with
hand pressure was removed from the Sea-Tac
project.
Mrs. Nolan of the Puget Sound air
control authority, whose testimony I also
found to be very credible, met with Mr.
Walsh at the site about February 4, 1986,
and discussed various problems. Mr. Walsh
suggested various solutions and alterna-
tives. Mrs. Nolan went back on February
11th and prepared an inspection report,
exhibit 72, which outlines the violations
including the removal of dry, friable as-
bestos, asbestos not adequately wetted and
a large pile of asbestos inside the con-
tainment area.
Three notices of violation were issu-
ed on February 11th, exhibits 65, 66 and
MEMORANDUM OPINION--PAGE 11
67, and they were sent to Jim Savage as
the person responsible, the owner or the
agent of the owner. Samples were taken
and tested positive for asbestos as con-
tained in exhibit 64. Subsequent notices
and orders of civil penalties were sent to
the Savage company, exhibits 68 and 69.
Mr. Walsh signed the Notice of Appeal, ex-
hibit 7, appealing these notices. A por-
tion of the penalty was later affirmed, I
believe in the amount of $500.
Ms. Carolyn Rankin, a Port inspector,
also inspected the project, dealt with Mr.
Walsh and testified that friable material
was present at the jobsite in violation of
the various regulations. Mr. Walsh was
the primary contact with Ms. Rankin on
several occasions. I found her testimony
to be very credible and supported by her
inspection reports as well as her diary
MEMORANDUM OPINION--PAGE 12
notations.
I find and conclude under all the
facts that were presented in connection
with this particular project that Mr.
Walsh, although he only had the title of
estimator at the time, was, in fact, the
Savage Enterprises employee responsible
for the overall supervision and control of
that project. He had the ability to cor-
rect work, he was the person having the
necessary control to be an operator under
the statute. I also find there were ser-
ious violations of work practices under 40
CFR 147 which will support liability
against Mr. Walsh arising from the Sea-Tac
project.
The next project I want to discuss is
the Woodinville School project. Between
June 26th and July 3 of 1986, Savage En-
terprises conducted removal of asbestos at
MEMORANDUM OPINION--PAGE 13
the Woodinville School located at 13209
Northeast 175th Street in Woodinville,
Washington. During this period, Mr. Walsh
was the vice-president and he signed the
contract for Savage Enterprises. Esther
Miller was, however, the estimator and re-
sponsible for solving problems during the
course of the work. Mr. Joe Silva was the
foreman of the project.
Mr. Walsh was not present at the work
and I find did not have sufficient control
over this project to be an operator of the
project. Although serious violations were
found to exist, he cannot be held person-
ally responsible because of his lack of
hands-on supervision and control of that
project. The fact that Mr. Walsh may have
signed a Notice of Appeal and a Notice of
Violation is, in my opinion, not suffi-
cient to bring into account civil liabili-
MEMORANDUM OPINION--PAGE 14
ty against the defendant for this project.
The third project that I want to dis-
cuss is the Crab Pot Restaurant. Between
July 17 and September of 1986, Savage Ent-
erprises conducted removal of asbestos at
the Crab Pot Restaurant facility at Pier
52 in Seattle. During this project, Mr.
Walsh was vice-president of Savage Enter-
prises and responsible for the overall su-
pervision of the project, including all
contractual aspects. He signed the Notice
of Intent to Remove, exhibit 10.
Mr. Van Pham visited the worksite be-
fore work commenced and talked to mr.
Walsh about the scope of the project. Van
Pham was the foreman during the first week
and he took directions from Mr. Walsh.
Mr. Walsh testified ane I find that there
were, in fact, two shifts that were work-
ing on this project, 4 day shift and a
MEMORANDUM OPINION--PAGE 15
night shift, and two separate foremen. If
there were problems or calls by the work-
ers or the other inspectors, Mr. Walsh ad-
mits he would have dealt with them.
Mr. Walsh testified previously on
July 22nd of 1987 before the Department of
Labor and Industries in a hearing, his
testimony is reflected in exhibit 186,
that he was responsible for this project.
Mrs. Nolan inspected the project in July,
exhibit 103, and September 8th, 11th and
22nd, exhibit 104, and found asbestos mat-
erial in a crawl space as well as chunks
of asbestos in the floor where the work
had been done. Eompies were taken which
revealed asbestos as shown f exhibits
106, 107 and 108.
Judy Tallman, I believe her name was
Judy Stevens at the time, was the inspec-
tor for the Port of Seattle during this
MEMORANDUM OPINION--PAGE 16
project and believed Mr. Walsh was the
project superintendent. Mrs. Tallman
dealt with the defendant regarding sched-
uling, delays and increased cost* in the
project. She talked to the defendant two
to three times a week during the entire
course of the project.
Mr. McClelland Davis of the Depart-
ment of Labor and Industries inspected the
Crab Pot in July and August, see exhibit
109, and found asbestos outside the con-
tainment area, found workers without prop-
er equipment and testified and I find the
asbestos was friable.
Mr. Savage testified during his depo-
sition, page 131, line 14, that Mr. Walsh
was the superintendent and had an on-site
supervisory role for the Crab Pot Restaur-
ant. I find and conclude that Mr. Walsh
did have, in fact, overall supervision of
MEMORANDUM OPINION--PAGE 17
this project and/or held himself out to
others as being a person in charge. I
find violations of the work practices and
find that Mr. Walsh is responsible for
them. I also find that the violations
here were not as significant as they were
at the Sea-Tac project.
The fourth and last project is 1104
Northeast 47th Street here in Seattle.
Actually, this project involved removal of
asbestos from two buildings owned by the
Coppage family located at the corner of
11th Avenue and 47th Northeast in Seattle.
The larger of the two buildings was a two-
story building commonly referred to as the
1104 Building.
Although Mr. Walsh was the president
of the company at that time, he had no
real personal involvement in this particu-
lar project. He signed the Notice of Re-
MEMORANDUM OPINION--PAGE 18
moval for the small cottage which adjoined
the 1104 Building, the small cottage’s no-
tice was, I believe, exhibit 118, but did
not estimate the 1104 project. That was
done by Mr. Pullen, I believe. But in any
event, it wasn’t done by this defendant.
And there was no notice sent by anyone as
required by law as to this project.
I find and conclude based on the evi-
dence that Mr. Walsh was not an operator
as it relates to the 1104 Building site
for purposes of this case. I make that
conclusion because he didn’t estimate the
job, he was never on the jobsite while the
work was being performed. He never actu-
ally saw the building and testified that
he never did know what it looked like
until he saw pictures during the course of
the trial. And there may have been other
people that would be responsible and could
MEMORANDUM OPINION--PAGE 19
be brought to account, but I don’t believe
Mr. Walsh is one of them. The fact that
he was president in name does not, in my
opinion, suffice. And his personal in-
volvement, as I’ve indicated, is not suf-
ficient, I believe, to find liability.
I believe and find that it is not ne-
cessary to find specific air emissions in
order to have a violation under the Clean
Air Act. But I also find in the alterna-
tive that evidence was presented that un-
der specific conditions observed and doc-
umented at both the Sea-Tac and Crab Pot
projects, the government has proved by a
preponderance of evidence that the defen-
dant caused asbestos materials to be emit-
ted to the outside air during the removal
or after removal in violation of 42 USC
Section 7412.
The next subject that needs to be
MEMORANDUM OPINION--PAGE 20
dealt with is Mr. Walsh’s financial con-
dition and what is an appropriate civil
penalty. I have a lot of concern here be-
cause of the nature of the defendant’s fi-
nancial condition at the present time. It
is true that while he worked at Savage En-
terprises, as shown by various exhibits
and his own testimony, he made during the
first year approximately 26 to $28,000,
during the second year $35,000, during the
third year, I believe the total was
110,000 as shown by his income tax re-
turns, although 50,000 of that was a loan
and then later converted into compensation
at the direction of Mr. Savage, and during
the fourth year, 18 to $20,000.
Unfortunately, Mr. Walsh has fallen
on somewhat hard times. During 1990, he
had attributable income to him of $8900,
most of which was attributable income
MEMORANDUM OPINION--PAGE 21
other than real income paid to him for his
work. I think the level of his income,
actual earnings themselves, was something
in the two to $3,000 range. Maybe it was
ab much as 4,000. It wasn’t enough to
live on. And clearly, he’s not been able
to live on what he’s made and as a result
has lived with his girlfriend, apparently,
who pays the rent and buys the _ food.
Sounds like a pretty good deal for Mr.
Walsh, but it obviously indicates that he
is not able to pay any significant fine or
civil penalty as well.
The expert that the government pre-
sented, an EPA expert economist, frankly
admitted under questions from the Court
that given his level of actual income or
even attributable income during 1990 and
1991, the defendant cannot pay any signi-
ficant fine or civil penalty.
MEMORANDUM OPINION--PAGE 22
Based on the facts that I’ve found, I
make the following Conclusions of Law.
One. The Court has jurisdiction over
the subject matter pursuant to Section 113
(b) of the Clean Air Act, 28 USC Section
7413(b). Also, venue is proper in this
district pursuant to 28 USC Section 7413
(b).
Two. Section 112 of the Clean Air
Act, 42 USC Section 7412, authorizes the
administrator of the Environmental Protec-
tion Agency to publish a list of hazardous
air pollutants and to establish a national
emission standard for hazardous air pollu-
tants, frequently known as NESHAP, to pro-
vide an ample margin of safety to protect
the public health from such hazardous air
pollutants. 42 USC Section 7412(b)(1)(B).
A hazardous air pollutant is an air
pollutant which, in the judgment of the
MEMORANDUM OPINION--PAGE 23
T=
administrator, causes or contributes to
air pollution which may reasonably »e an-
ticipated to result in an increase in mor-
tality or an increase in serious, irrever-
sible or incapacitating irreversible ill-
ness. 42 USC Section 7412(a)(1).
Asbestos is listed as a hazardous air
pollutant. 36 Federal Register 3031.
It is not feasible to prescribe or
enforce an emission standard for control
of a particular hazardous pollutant. The
administrator of the EPA may instead prom-
ulgate a design, equipment or work prac-
tice, operational standard or combination
thereof.
The asbestos NESHAP establishes work
practices to be followed in the handling
of asbestos and any work practice standard
promulgated as a part of NESHAP should be
treated as an emission standard. A viola-
MEMORANDUM OPINION--PAGE 24
tion of NESHAP is a violation of the Clean
Air Act. 42 USC Section 112(c)(B)(1)(b)
and 112(e).
A person is liable for civil penal-
ties under the adt if the United States
can demonstrate that minimum threshold re-
quirements of the asbestos NESHAP have
been met and that the work practices of
the asbestos NESHAP have not been satis-
fied. As I’ve indicated, a person vio-
lates those practices when a person is the
Owner or operator of a renovation or demo-
lition operation, a threshold amount of
friable asbestos was involved and the per-
son violated the guidelines.
The asbestos NESHAP applies to each
owner or operator of a demolition or reno-
vation operation if the amount of friable
material reaches a certain amount. I find
that the amount of friable material reach-
MEMORANDUM OPINION--PAGE 25
————eaeaa
ed the required amount, and I find that
Mr. Walsh is an operator under the meaning
of the Clean Air Act and its regulations.
Visible emissions to the outside air from
a facility need not be shown for an owner
or operator to violate the asbestos work
practices NESHAP.
As I’ve indicated, an owner or opera-
tor who violates asbestos work practices
is liable for civil penalties up to
$25,000. I have previously found as a
fact and I find as a conclusion of law as
well that Mr. Walsh was an owner/operator
under the Clean Air Act and its applicable
regulations, has violated the asbestos
NESHAP work practices, regulations.
In determining the amount of penalty,
I must consider the nature of the viola-
tions, the size of the business that was
in existence at the time and the present
MEMORANDUM OPINION--PAGE 26
business, the ability to pay. And the
amount of penalty is always at the discre-
tion of the Court. The Court must take
into account the good or bad faith of the
defendant and the need to deter others.
I wish to state on the record that I
do take into account what I felt to be
very credible and responsive testimony
while Mr. Walsh testified. And he did
acknowledge, I’m satisfied, the serious-
ness of the charges and the need to abide
by all of these regulations which he’s
been called upon to answer to. I also
find that during his course of work at
Savage, he took efforts to train himself
and to train others and to prepare work
manuals that dealt with the problems deal-
ing with asbestos.
I am also taking into account the na-
ture of the fact that there is no reported
MEMORANDUM OPINION--PAGE 27
ee
opinion that anyone can point to that has
held a nonowner responsible for civil pen-
alties.
In the Court’s judgment, teking all
of this into account, the EPA should be
awarded a civil penalty against Mr. Walsh
as follows. In connection with the Sea-
Tac project, a civil penalty in the amount
of $2500. And with respect to the Crab
Pot project, a civil penalty in the amount
of $1,000. The penalties must be paid
within two years of the date of judgment,
with interest accruing at the federal rate
of interest.
I am also going to award and grant
injunctive relief against Mr. Walsh per-
sonally. I believe it is appropriate that
injunctive relief be granted in a case
like this given the nature of the viola-
tions that have occurred. Mr. Walsh will
MEMORANDUM OPINION--PAGE 28
a
be enjoined from engaging in any removal
of asbestos without full and complete com-
pliance with the Clean Air Act and the as-
bestos NESHAP work practices. The period
of the injunctive relief should be for a
period likewise of two years.
I would point out that in assessing a
penalty, as I have said, I have taken into
account a lot of factors. I suppose pri-
marily I’m taking into account that the
owner of this business is not here for me
to assess penalties against, and Mr. Walsh
has little ability to pay a penalty. I am
hopeful that the Court’s decision and the
findings of the Court will be a substan-
tial deterrent to others. I am confident
that it is going to be a deterrent to Mr.
Walsh as he continues to work in this in-
dustry.
I think that assessing a greater pen-
MEMORANDUM OPINION--PAGE 29
alty would be not productive, would not be
collectable and would serve no reasonable
or just purpose. I believe that the pen-
alties in the amounts that I’ve indicated
are something that, hopefully, Mr. Walsh
will be able to pay in the period I’ve in-
dicated and get on with his life.
I believe that concludes my findings
and conclusions and we’ll be at recess.
Thank you very much.
(At 11:53, court was in recess. )
MEMORANDUM OPINION--PAGE 30
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF Civil Action
AMERICA, No. C89-12632Z
PLAINTIFF,
TIVE RELIEF
JAMES A. WALSH,
)
)
)
)
Vv. ) ORDER FOR INJUNC-
)
)
DEFENDANT. )
)
Entered On January 6, 1992.
ORDER FOR INJUNCTIVE RELIEF
Upon consideration of the arguments
of counsel and the evidence elicited dur-
ing the trial of this matter from November
14 through November 20, 1991, it is hereby
ORDERED, ADJUDGED, AND ADJUDICATED as fol-
lows:
+ Defendant James A. Walsh is en-
joined from violating all applicable pro-
visions of the Clean Air Act and the as-
bestos NESHAP in all renovation or demoli-
tion operations involving the stripping or
INJUNCTION--PAGE 1
ea
removal of asbestos including the provi-
sions set forth in 40 C.F.R. §61.146 and
§61.147.
ae Whenever defendant Walsh con-
ducts, substantially supervises, or sub-
stantially controls a renovation or demo-
lition operation which is subject to the
asbestos NESHAP, Defendant Walsh shall
provide EPA Region 10 with a copy of any
notice required to be provided to any
state or local pollution control agency as
set forth in 40 C.F.R. § 61.146. Notice
to EPA shall be sent to:
Asbestos Program Manager
Air and Toxics Division, AT-082
U.S. Environmental Protection Agency
Region 10
1200 Sixth Avenue
Seattle, Washington 98101
k This injunction shall remain in
effect for a two year period commencing on
November 20, 1991.
INJUNCTION--PAGE 2
| | |
DATED THIS 6th DAY OF _January ,
1991 [sic].
Ls/
THOMAS S. ZILLY
United States District
Court Judge
INJUNCTION--PAGE 3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF
AMERICA,
PLAINTIFF,
Civil Action
No. C89-12632Z
TRIAL ORDER
[ADMITTED FACTS
PORTION ONLY]
JAMES A. WALSH,
)
)
)
)
Vv. ) JOINT PROPOSED PRE-
)
)
DEFENDANT. )
)
Filed With Court On October 29, 1991.
Entered on Docket October 30, 1991.
ve Defendant Walsh is a resident of
King County, Washington.
iF Savage Enterprises, Inc. ("Sav-
age Enterprises") was incorporated on
March 26, 1984.
# During the period from March 26,
1984 through July 27, 1988, Savage Enter-
prises provided services as an asbestos
abatement and paint contractor.
4. On or about July 27, 1988, Sav-
age Enterprises ceased operations and was
ADMITTED FACTS--PAGE 1
thereafter dissolved as a corporate entity
by the State of Washington.
ae During its life as a painting
and asbestos removal contractor, Savage
Enterprises contracted to perform over 500
asbestos removal or encapsulation pro-
jects.
6. During its life as a contractor,
Savage Enterprises averaged not more than
10-15 full time employees.
as Defendant Walsh was first em-
ployed by Savage Enterprises by no later
than March 1985.
8. From at least May 1986 through
February 1987, defendant Walsh was vice-
president of Savage Enterprises.
9. As vice-president, Mr. Walsh su-
pervised daily operations, financial anal-
ysis, sales projections, prepared cost es-
timates and notices of intent to remove
ADMITTED FACTS--PAGE 2
asbestos ("NIRAs"), quality control, pub-
lic relations, customer liaison, and con-
tract management.
10. From March 1987 through November
26, 1987, Defendant Walsh served as presi-
dent of Savage Enterprises. As president,
Mr. Walsh’s tasks and functions included
the same tasks and functions he had per-
formed as vice-president.
11. On November 26, 1987, Defendant
Walsh resigned as president of Savage Ent-
erprises.
12. After Mr. Walsh resigned as pre-
Ssident and until at least June 16, 1988,
defendant Walsh continued to refer to him-
self in certain contract and other docu-
ments as president of Savage Enterprises.
13. After defendant Walsh resigned
as president, Mr. Walsh’s tasks and func-
tions continued to include the same tasks
ADMITTED FACTS--PAGE 3
and functions he had previously performed
as vice-president.
14. From March 31, 1987 through July
15, 1988, Mr. Walsh served on the Board of
Directors of Savage Enterprises.
15. At no time did Walsh have any
ownership interest in Savage Enterprises.
16. After any notice of violation
was issued, Walsh’s personal involvement
as vice president and as president includ-
ed complaint investigation and implement-
ing remedial measures.
17. Defendant Walsh was the primary,
but not the only, official at Savage Ent-
erprises who represented the company be-
fore administrative agencies with respect
to environmental compliance matters.
18. During defendant Walsh’s employ-
ment at Savage Enterprises, his responsi-
bilities included the hiring or firing of
ADMITTED FACTS--PAGE 4
union and other workers at Savage Enter-
prises. Walsh was only one of several
Savage Enterprises employees who could
(but not necessarily did) hire and term-
inate union and other workers.
Th i I
Rainier Bank
19. Savage Enterprises engaged ina
renovation operation within the definition
of the NESHAP regulations, 40 C.F.R. §
61.141, in the soffit areas at the Rainier
National Bank facility, located at 1620
California Street in Everett, Washington.
20. The renovation operation on the
soffit areas at the Rainier Bank involved
the removal or stripping of friable asbes-
tos material as defined in 40 C.F.R. §
61.141.
21. The Rainier Bank was a station-
ary source within the definition of 40
ADMITTED FACTS--PAGE 5
lalate,
C.F.R. § 61.02.
22. The Rainier Bank was a facility
within the definition of 40 C.F.R. §
61.141.
23. The renovation operation on the
soffit areas at the Rainier Bank facility
involved the removal or stripping of quan-
tities of friable asbestos in excess of
260 linear feet on pipes or 160 square
feet on other facility components.
24. Savage Enterprises was an opera-
tor on the soffit areas at the Rainier
Bank, within the definition of 40 C.F.R.
§§ 61.02 and 61.141, during the renovation
operation at the facility.
Sea-Tac Airport
25. Savage Enterprises engaged in a
renovation operation within the definition
of the NESHAP regulations, 40 C.F.R. §
61.141, at the Sea-Tac Airport facility in
ADMITTED FACTS--PAGE 6
the State of Washington.
26. The renovation operation at the
Sea-Tac Airport involved the removal or
stripping of asbestos material.
27. The defendant contends that the
removal or stripping involved non-friable
asbestos materials. The United States
contends that the removal or stripping in-
volved friable asbestos material.
28. The Sea-Tac Airport was a sta-
tionary source within the definition of 40
C.P.R. § 61.02.
29. The Sea-Tac Airport was a facil-
ity within the definition of 40 C.F.R. §
61.141.
30. The renovation operation at the
Sea-Tac Airport facility involved the re-
moval or stripping of quantities of asbes-
tos in excess of 260 linear feet on pipes
or 160 square feet on other facility com-
ADMITTED FACTS--PAGE 7
\
eT
ponents.
31. Savage Enterprises was an opera-
tor at the Sea-Tac Airport, within the de-
finition of 40 C.F.R. §§ 61.02 and 61.141,
during the renovation operation at the fa-
cility.
32. Defendant Walsh was responsible
for supervising the contractual aspects of
the relationship between Sea-Tac Airport
and Savage Enterprises.
33. On October 3, 1986, Walsh testi-
fied under oath at a hearing held by the
Washington State Pollution Control Hearing
Board regarding Savage Enterprises’ appeal
Of PSAPCA notices of violation dated Feb-
ruary 11, 1986 and February 14, 1986 rela-
ting to the Sea-Tac Airport project that
the asbestos material removed was not par-
ticularly friable, that it was cementi-
tious, that it was harder than sheetrock
ADMITTED FACTS--PAGE 8
but softer than concrete, and that he had
soaked a piece of it in water overnight
and that when he broke it open-with_a ham-
mer the following morning it was still dry
inside.
Woodinville School
34. Savage Enterprises engaged in a
renovation operation within the definition
of the NESHAP regulations, 40 C.F.R. §
61.141, at the Woodinville School facili-
ty at 13209 N.E. 175th Street in Woodin-
ville, Washington.
35. The renovation operation at the
Woodinville School involved the removal or
stripping of friable asbestos material as
defined in 40 C.F.R. § 61.141.
36. The Woodinville School was a
stationary source within the definition of
40 C.F.R. § 61.02.
37. The Woodinville School was a fa-
ADMITTED FACTS--PAGE 9
vm
cility within the definition of 40 C.F.R.
§ 61.141.
38. The renovation operation at the
Woodinville School facility involved the
removal or stripping of quantities of fri-
able asbestos in excess of 260 linear feet
On pipes or 160 square feet on other fa-
cility components.
39. Savage Enterprises was an opera-
tor at the Woodinville School, within the
definition of 40 C.F.R. §§ 61.02 and
61.141, during the renovation operation at
the facility.
40. Defendant Walsh was vice-presi-
dent of Savage Enterprises during the
Woodinville School project.?
3 In his response to the United States'
Request for Admissions, this statement originally
contained two clauses. Specifically, it read as
follows: "Defendant Walsh was vice president of
Savage Enterprises during the Woodinville School
project and signed the project contract on behalf
of the company." Subject to Rule 36(b), Plaintiff
United States does not object to dropping the se-
cond clause of this admission.
ADMITTED FACTS--PAGE 10
Crabpot Restaurant
41. Savage Enterprises engaged in a
renovation operation within the definition
of the NESHAP regulations, 40 C.F.R. §
61.141, at the Crabpot Restaurant facili-
ty located at Pier 52 in Seattle, Washing-
ton.
42. The renovation operation at the
Crabpot Restaurant involved the removal or
stripping of friable asbestos material as
defined in 40 C.F.R. § 61.141.
43. The Crabpot Restaurant was a
stationary source within the definition of
40 C.F.R. § 61.02.
44. The Crabpot Restaurant was a fa-
cility within the definition of 40 C.F.R.
§ 61.141.
45. The renovation operation at the
Crabpot Restaurant facility involved the
removal or stripping of quantities of fri-
ADMITTED FACTS--PAGE 11
Y
able asbestos in excess of 260 linear feet
on pipes or 160 square feet on other fa-
cility components.
46. Savage Enterprises was an opera-
tor at the Crabpot Restaurant, within the
definition of 40 C.F.R. §§ 61.02 and
61.141, during the renovation operation at
the facility.
47. Defendant Walsh was vice-presi-
dent of Savage Enterprises during the
Crabpot Restaurant project and was respon-
sible for the supervision of the contract-
ual aspects of the relationship between
the Washington State Department of Trans-
portation (owner of the Crabpot Restaurant
facility) and Savage Enterprises.
1104 Building
48. The operation at the 1104 Build-
ing involved the removal or stripping of
friable asbestos material as defined in 40
ADMITTED FACTS--PAGE 12
|
C.F.R. § 61.141.
49. The 1104 Building was a station-
ary source within the definition of 40
C.F7.8. 9 61.62.
50. The operation at the 1104 Build-
ing involved the removal or stripping of
quantities of friable asbestos in excess
of 260 linear feet on pipes or 160 square
feet on other facility components.
51. Savage Enterprises conducted an
operation at the 1104 Building.
52. Defendant Walsh was president of
Savage Enterprises during the 1104 Build-
ing project and signed the project con-
tract of [sic] behalf of the company.
53. Defendant Walsh was in Seattle
on March 23, 1987, during the asbestos re-
moval phase of the 1104 Building project.
54. At the 1104 Building, Savage En-
terprises failed to provide written notice
ADMITTED FACTS--PAGE 13
|
of intent to remove asbestos to PSAPCA
prior to asbestos removal.
55. The 1104 Building was a _ two-
story structure that had (a) four apart-
ment units on the second floor and (b) an
office and restaurant on the first floor.
56. The 1104 Building was severely
damaged by a gas explosion that occurred
before Savage Enterprises undertook its
asbestos removal project at the premises.
57. Demolition of the 1104 Building
was scheduled to start on April 4, 1987;
the building subsequently was demolished.
Terry Avenue
58. Savage Enterprises engaged ina
renovation operation within the definition
of the NESHAP regulations, 40 C.F.R. §
61.141, at 2121 Terry Avenue ("Terry Buil-
ding") in Seattle, Washington.
59. The renovation operation at the
ADMITTED FACTS--PAGE 14
se i
Terry Building involved the removal or
stripping of friable asbestos material as
defined in 40 C.F.R. § 61.141.
60. Terry Building was a stationary
source within the definition of 40 C.F.R.
§ 61.02.
61. Terry Building was a facility
within the definition of 40 C.F.R. §
61.141.
62. The renovation operation at the
Terry Building involved the removal or
stripping of quantities of friable asbes-
tos in excess of 260 linear feet on pipes
or 160 square feet on other facility com-
ponents.
63. Savage Enterprises was an opera-
tor at the Terry Building, within the def-
inition of 40 C.F.R. §§ 61.02, 61.141,
during the renovation operation at the
facility.
ADMITTED FACTS--PAGE 15
a Te NT
64. Defendant Walsh was vice-presi-
dent of Savage Enterprises during the
Terry Building project.
65. Walsh, individually or other-
wise, has at no time had an ownership or
leasehold interest in any of the above
buildings or projects.
66. To become and continue to be a
state-certified asbestos worker, an indi-
vidual is required to periodically attend
state sponsored courses and pass tests re-
lating to the identification of asbestos,
proper asbestos removal techniques, per-
sonal health protection, air monitoring,
and other relevant topics.
67. In 1985, Savage Enterprises pre-
pared and published a document entitled
"Technical Specifications - Asbestos
Abatement" (the "Asbestos Abatement
Manual").
ADMITTED FACTS--PAGE 16
. |
68. In 1985, Savage Enterprises
prepared and published a safety manual
entitled "Savage Enterprises, Inc., Em-
ployee Safety Handbook" (the "Safety
Manual"). A portion of the Safety Manual
was devoted to handling asbestos materi-
als, negative air enclosures, and glove
bag enclosures.
69. Savage Enterprises employees who
signed checks included James J. Savage,
Sandra L. Sprague, Dixie Housen, Barbara
A. Griffith, Lori L. Gleich, and James A.
Walsh.
70. The United States has no samples
of the asbestos-containing material that
was in fact removed or stripped by Savage
Enterprises from either the Rainier Bank
or the Sea-Tac Airport.
ADMITTED FACTS--PAGE 17
STATE OF WASHINGTON )
; ss AFFIDAVIT
COUNTY OF KING )
RHYS A. STERLING, being first duly
sworn on oath, states:
- I am the attorney of record for
Petitioner James A. Walsh in this matter.
y I am a member of the bar of this
Court (admitted December 6, 1993).
Bs The preceding materials’ set
forth in Appendix B of this Petition For
Writ Of Certiorari are, to the best of my
own knowledge and ability, a true and ac-
curate reproduction of the purported doc-
uments on file with the United States Dis-
trict Court, W.D. Washington, at Seattle.
DATED this lst day cf February,
1994.
BO 83 ip
RHYS A. STERLING }
AFFIDAVIT--PAGE 1
Subscribed and sworn to before me on
this ist day of February, 1994.
| { , vd. Vn do} (
= A a — Vig
Mad Ehnsdect ¥ —_ le Wwe!
(Print Name)
Notary Public in and for the
State of Washington residing
at _[Lvinaeo-: ;
My commission expires ,{2-!/1-4&
AFFIDAVIT--PAGE 2
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.