JOE BILLY McDADE, United States Senior District Judge.
This matter is before the Court on the United States' Objections (Doc. 7) to Magistrate Judge Hawley's Report and Recommendation (Doc. 6) that the Court Deny the United States' Motion for Order in Aid of Immediate Access (Doc. 3). For the reasons that follow, the Court concludes that the United States' objections are well-taken and respectfully rejects the recommended disposition. Instead, the Court grants the United States' Motion for Order in Aid of Immediate Access, a decision that is dispositive of the case.
The United States filed a Complaint against Donna Gearing and Larry Thomason pursuant to Section 104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9604(e). It seeks access to property that houses the remains of a burned-down former school building ("the Site") so that the United States Environmental Protection Agency ("EPA") can test for the presence of certain hazardous substances and remove hazardous substances that it knows are currently present on the Site.
The Complaint seeks an order against Gearing (the owner of record) granting the EPA, its employees, representatives, and contractors any and all access to, through, over, and under the Site for the duration of time necessary for the EPA to conduct an investigation and perform necessary response actions. (Doc. 1 at 9). It also seeks an order against Gearing and Thomason (the man whom asserts ownership, and whom Gearing has stated is the owner), enjoining them for interfering with the access. (Id.).
The United States served Defendant Gearing on August 20, 2015 (Doc. 9) and Defendant Thomason on August 24, 2015. (Doc. 5). Neither Defendant has filed an answer or a response to the pending motion.
Judge Hawley issued a report and recommendation on September 14, 2015. (Doc. 6). In it, he recommended that the Court deny the United States' motion. He reasoned that the United States' request for access to remediate was arbitrary and capricious because there was no proportionality between the United States' evidence of contamination and proposed rehabilitation plan.
The United States then filed its objections to the Report and Recommendation. It argues that the Report and Recommendation both understated the degree of contamination found at the Site and overstated the scope of remediation that it seeks. At the United States' request, the Court held a hearing on the matter on October 28, 2015. Defendant Thomason appeared and represented himself pro se at the hearing, but Defendant Gearing was absent. During the hearing, the Court heard testimony from Craig Thomas, who is the On-Scene Coordinator for Region 5 of the EPA.
The Site to which the EPA would like access is about 1.3 acres in the Village of Vermont in Fulton County, Illinois. It is bordered by First South Street to the north, North Main Street to the east, North Alley Street to the south, and North Liberty street to the west. The Site is in a residential area, and homes are situated within about fifty feet of the property.
On December 12, 2012, a fire left the school building on the Site mostly destroyed. What remains is in a severe state of disrepair.
The Illinois Environmental Protection Agency ("Illinois EPA") conducted an inspection of the Site on May 1, 2013 pursuant to an administrative search warrant, during which it took samples from and photographs of the Site. During the course of its inspection, the Illinois EPA obtained fourteen samples that it suspected might contain asbestos. Of the fourteen, nine tested positive for asbestos.
Six of the Illinois EPA's samples came from a 96-cubic foot debris pile in the
Samples eight, nine, and ten were taken from floor tiles in the basement. The basement floor tiles cover approximately 1,800 square feet of the building. Each of those samples was 3-5 percent asbestos. Samples eleven, twelve, and fourteen were of ceiling tiles taken from a room along the east wall of the building, and all tested negative for asbestos. Sample thirteen was of window caulking from an entry door, and it too tested negative for asbestos. All of the samples except for sample thirteen could be reduced to powder with hand pressure. The Illinois EPA also observed suspected asbestos containing material that it could not test because it was inaccessible. This includes suspected spray-on asbestos on pipes.
The Illinois EPA referred the matter to the EPA. In April of 2014, the EPA's on-scene coordinator, Craig Thomas, visited the property. On April 22, 2014, he observed the Site from a public right of way, and saw piles of suspected asbestos-containing materials. He also observed on-site graffiti, which suggested to him the presence of trespassers.
Based upon the results of the on-site testing and his own observations, Thomas concluded that the Site poses a public threat health and sought access so he could conduct further testing and clean-up at the Site. Thomas sought and obtained approval and funding from the EPA to undertake a "Time-Critical Removal Action" as provided for in the National Contingency Plan, 40 C.F.R. § 300.415(b). (Doc. 4-5 at 2, 13). As he stated in his memorandum to the EPA:
(Doc. 4-5 at 2). Based on the condition of the Site, Thomas indicated that he believed there was nothing at the Site that could "prevent asbestos from migrating from the former building footprint and being released into the environment." (Id. at 8). Thomas requested approval to conduct removal activities, which he opined are not disproportionate to the dangers posed by the property, including:
(Id. at 9-10). Thomas projected that the total cleanup could cost up to $548,624. (Id. at 11).
The Director of the Superfund approved Thomas's request, (id. at 13), and Thomas then began an ultimately unsuccessful process of trying to obtain Gearing and Thomason's permission to enter the Site for testing and removal. Because the EPA could not obtain either Defendant's compliance, the United States has come to the Court and requested an order allowing it access.
At the hearing, Defendant Thomason admitted to the existence of identifiable asbestos at the site that was present in six piles of debris before the fire; and after-ward, in the two debris piles, located in the boiler room and the basement; and he stated that he has been engaged in his own efforts to eliminate it from these two remaining piles. He testified that when the asbestos is wet, he has been sorting it from other debris, and then moving the sorted asbestos to a concrete electrical vault that is also on the Site. He said that he does not remove asbestos when it is dry. Thomason testified that he moved the asbestos containing material from the pile in the boiler room to the on-site electrical vault, but many of the asbestos-containing floor tiles in the pile in the basement remain on the premises.
Essentially, Thomason's objection to the EPA's motion reflects his view that the limited amount of asbestos existing in the two debris piles does not warrant the broad remedial actions contemplated by the EPA in its remedial plan at a budgeted cost of over half a million dollars. He suspects that the remedial plan is a subterfuge to completely demolish the building, which is an eyesore, at an exorbitant cost that is beyond his financial ability to reimburse in order to preserve his ownership interest in the Site. This position mirrors the concern of the Report and Recommendation that the proposed remedial plan is disproportionate to the asbestos risk associated with the two debris piles.
When a plaintiff timely files an Objection to a Report and Recommendation, the Court reviews de novo those portions of it to which a specific written objection has been made. Fed.R.Civ.P. 72(b)(3). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id.
The United States objects to the Report and Recommendation's conclusion that it has not met its burden for obtaining access to the Site in order to remove hazardous substances. Before reaching merits of the United States' objections, a brief statutory overview is necessary.
CERCLA affords the EPA broad powers to clean up sites where hazardous substances have been released or threatened to be released into the environment. Key Tronic Corp. v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994) ("As its name implies, CERCLA is a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites."). Under CERCLA, a "release" is "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment...." 42 U.S.C. § 9601(22). When there is an actual release or substantial threat of release of a hazardous substance into the environment, the EPA is "authorized to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance ... or take any other response measure consistent with the national contingency plan" that the EPA deems necessary to protect the public health or welfare or the environment. 42 U.S.C. § 9604(a)(1).
CERCLA provides a number of mechanisms for the EPA to obtain access to a Site. The EPA may enter a Site when "there is a reasonable basis to believe there may be a release or threat of release of a hazardous substance or pollutant or contaminant." 42 U.S.C. § 9604(e)(1). It may enter "[a]ny vessel, facility, establishment, or other place or property" where a hazardous substance, pollutant, or contaminant (1) is or has been generated, stored, treated, disposed of, or transported from, (2) has been or may have been released, (3) is or may be threatened to be released, or (4) anywhere else entry is needed to determine the need for response or the appropriate response or to effectuate a response. Id. at § 9604(e)(3). Once there, EPA officials can "inspect and obtain samples" from places they are authorized to access, id. at § 9604(e)(4), or "determin[e] the need for response, or choos[e] or tak[e] any response action under this subchapter, or otherwise enforce[e] the provisions of this subchapter." Id. at § 9604(e)(1).
In the event that the EPA cannot obtain consent to enter a site, the statute provides it with two other ways in which it can obtain access. First, the EPA may obtain an administrative order directing compliance with the request for access. See id. at § 9604(e)(5)(A). If the site owners do not comply with the administrative order, the EPA can ask the Department of Justice to initiate a civil action to compel compliance with the order. Id. at § 9604(e)(5)(B); see also United States v. Tucard, LLC, 738 F.Supp.2d 243, 244 (D.Mass.2010); United States v. City of New Orleans, 86 F.Supp.2d 580, 582-83 (E.D.La.1999). CERCLA also provides that the Department of Justice can initiate a civil action to compel compliance with a request by the EPA for entry. See 42 U.S.C. § 9604(e)(5)(B)("The President may ask the Attorney General to commence a civil action to compel compliance with a request...."); see also United States v. Mountaineer Refining Co., 886 F.Supp. 824, 826-27 (D.Wyo.1995).
Pursuant to Section 104(e)(5)(B)(i) of CERCLA, courts shall allow the EPA entry onto property and enjoin interference with the EPA's entry "unless under the circumstances of the case the demand for entry or inspection is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law." 42 U.S.C. § 9604(e)(5)(B)(i).
In Tarkowski, the United States sought an order that would allow the EPA to enter the property of an elderly and poor man, fence off the property, conduct tests for contaminants, install groundwater-monitoring wells, dig up the property looking for any buried drums (and remove any buried drums found), remove contaminated soil, and cart away objects lying around on the property. Id. at 598. The United States supported its motion for access to conduct removal actions by presenting samples from the soil, drums, and pipe insulation that showed "trace amounts of contaminants." Id. "[T]here was no indication that [the trace amounts] exceeded the levels of these contaminants found in the surrounding properties none of which was deemed to pose any kind of environmental hazard or to require or justify remedial efforts." Id. Still, the United States brought the suit and claimed a right to access "without furnishing any factual basis for the claim that the environmental contamination at the Site ... presents an imminent and substantial endangerment to the public health, welfare and the environment...." Id. (internal quotation marks omitted).
The Court rejected the United States' "extreme position" that it "has an absolute right to an access order" so long as "it has probable cause to believe that there is even a thimbleful of a hazardous substance spilled in a person's yard...." Id. at 599. Instead, it concluded that the judicial review provided for in CERCLA § 104(e)(5)(B)(i) requires that it consider the magnitude of the contamination against the scope of the EPA's proposed response. See id. at 602. When a site, "although unsightly is not a site or source of even a slight environmental hazard," the court concluded it would be arbitrary and capricious for the EPA "to go ahead and rip up the property without completing its inspection." Id. at 599. "Judicial carte blanche to embark on drastic remedial action" is unreasonable when it isn't supported by "any rational basis for believing there is any danger to the environment that would warrant such action." Id. at 600.
Judge Ripple wrote a short concurrence in which he agreed that Congress, by including Section 104(e)(5)(B)(i) in CERCLA allowing for review of access requests under an arbitrary and capricious standard, "did not intend to tolerate such intrusions when they are based on the very limited evidence of contamination put forward in [Tarkowski]." However, he noted that the facts presented were "narrow and unusual," factors that left "a conceptual and practical difficulty." Id. at 603 (Ripple, J. concurring). Judge Ripple believed the Court's opinion left it unclear what circumstances "will justify a court's denial of entry to effectuate a remedial order." Id. He imagined a situation in which the evidence of contamination would allow for "some sort of response action," but would make "the contemplated remedy seem significantly disproportionate to the perceived violation." Id. (emphasis added). He then read into the opinion the implication that "there must be proportionality between the investigative results and the proposed plan." Id. However, he cautioned that courts intent on balancing the evidence against the remedy could end up "assuming a great deal more latitude than Congress intended." Id.
The task the Court is left with is determining whether the EPA's existing evidence of asbestos contamination is sufficient to justify its proposed removal operation. The Report and Recommendation found that the United States' evidence of contamination was too thin to justify the requested relief, which he characterized as extensive. Following entry of the Report and Recommendation, the EPA submitted a more substantial brief and supplemental affidavit that put its evidence of contamination into more enlightening context. See Fed. R.Civ.P. 72(b)(3) (allowing a district judge to consider further information in resolving objections to reports and recommendations issued by magistrate judges). In light of this newly supplied information, the Court concludes that the United States has met its burden under Tarkowski.
First, the Report and Recommendation considered the evidence of asbestos contamination. It characterized it as "more than nothing" but found that "it cannot be accurately characterized as substantial." (Doc. 6 at 14). The Report and Recommendation observed that the age of the testing — it was completed over two years ago — leaves some doubt that the property remains contaminated by asbestos. (Id.). The asbestos could have been moved, and it is possible that Defendant Thomason removed it. (Id.). The Report and Recommendation also observed that five of the fourteen samples tested negative for asbestos. (Id. at 15). Moreover, the nine positive samples came from "two relatively small locations" and contained varying degrees of asbestos, many of which were under twenty-percent. (Id.).
The United States objects to each of the Report and Recommendation's characterizations. First, it argues that the conclusion that asbestos may no longer be a problem is contrary to its review of the evidence. The United States argues that if anything, the asbestos contamination has gotten worse since the Illinois EPA's initial sampling. When Craig Thomas visited the Site last year, he observed debris piles on the property that he suspected contained asbestos. (Doc. 7 at 8). Additionally, Defendant Thomason, by his own admission, has been conducting his own cleanup by moving asbestos and other debris by wheelbarrow to an "old electrical vault" on the Site. Given that the asbestos the Illinois EPA identified on Site is friable, the United States argues that if anything it is likely that contamination on site has worsened over time due to Thomason's improper self-cleanup. This is because friable asbestos loses structural integrity, tends to crumble, and can migrate throughout a site and into the environment. (Id.). Therefore, what might have begun as a smaller pile of asbestos containing material may have become a much larger area contaminated by asbestos. The United States' position is strengthened by Defendant Thomason's testimony during the hearing. At the hearing, Defendant Thomason admitted that there is a limited amount of asbestos on the property, but argued that he is as well-suited as the EPA to remove it. In his mind, the EPA's proposed plan for removing the asbestos is needlessly expensive. He said he knows how to safely remove asbestos, knows when to remove asbestos (when it is wet rather than when it is dry), and also knows how to readily identify asbestos.
Second, the United States argues that it has presented evidence that the amount of asbestos containing material located on site is substantial and the amount of asbestos in that material is substantial. The
The United States also argues that the amount of asbestos found in the samples is substantial. Under NESHAP, "friable asbestos material" is defined as "any material containing more than 1 percent asbestos as determined using ... Polarized Light Microscopy, that, when dry, can be crumbled, pulverized, or reduced to powder by hand pressure." 40 C.F.R. § 61.141. There is a similar definition in OSHA regulations. See 29 C.F.R. § 1910.1001 (using one-percent as the threshold for defining friable asbestos-containing material). Indeed, EPA guidance materials suggest that the one-percent threshold may be under-inclusive of all dangerous friable asbestos, instructing its staff that "Regions should not assume that materials containing less than 1 percent asbestos do not pose an unreasonable risk to human health." (Doc. 7-4 at 2). The representative samples collected by the EPA that contain asbestos have considerably more than the one-percent rule of thumb articulated by the NESHAP and OSHA regulations and relied upon in CERCLA cleanups.
Based upon the information provided, the Court finds that the United States has presented substantial evidence of asbestos contamination. Arbitrary and capricious review "is deferential." Tarkowski, 248 F.3d at 602. This is especially important in the circumstances of this case, because determining whether a particular amount of asbestos contamination is hazardous to human health is the sort of determination that requires specialized knowledge and expertise that is outside the purview of most courts. Also unlike in Tarkowski, the United States has provided a rational basis for its assessment that the Site provides a real danger to public health, which was reflected in the Action Memorandum approved by the EPA.
Tarkowsi requires that courts in this circuit determine whether a proposed removal is arbitrary and capricious by considering the magnitude of the contamination against the scope of the EPA's proposed response action. 248 F.3d at 602. The Report and Recommendation characterized the proposed removal action as "at least the same `blank check' sought in Tarkowski; indeed, even more than that." (Doc.6 at 15). It observed that the proposed removal plan "could go so far as demolishing the building, removing all debris, and covering over what once was the school building with vegetation, thereby obliterating all trace of the former building." (Id.).
However, the United States has provided a number of reasons why it believes that its proposed clean-up is reasonable and proportional. First, it argues that its clean-up complies with regulations related to removing asbestos and is consistent with previous cleanups of asbestos-contaminated sites. (Doc. 7 at 13). Second, it argues that there are good reasons that it may have to demolish parts of the Site. The primary reason is that the building is in a severe state of disrepair and could pose dangers to EPA staff conducting the removal activity. For example, the on-site coordinator is concerned that there is a "very real danger of portions of the building collapsing." (Id. at 14). He bases this conclusion on his observations as well as the Village of Vermont's determination that the building is both unsafe and dangerous and should be either remediated or demolished. (Id. at 12-13). If the building collapsed, it would present two types of distinct dangers. First, it would present an immediate harm to EPA staff conducting the cleanup. Second, it could exacerbate the asbestos contamination by disturbing soil and causing asbestos fibers to become airborne. (Id.). The United States may also need to conduct demolition to remove asbestos containing material or test for the presence of asbestos containing material. In light of this, the United States argues that this proposed clean-up is proportional to the evidence of contamination because the contamination is "significant and dangerous" and "the cleanup is tailored to address those conditions." (Id. at 14-15).
CERCLA is not a nuisance-removal statute. Tarkowski is clear that the fact that a place is unsightly does not give the EPA license to "go ahead and rip up the property." 248 F.3d at 599. Instead, such drastic remedial action must be tied to a known environmental hazard. Id. Just as in Tarkowski, the Site at issue here is an eyesore. It is a fire-scarred shell of a building marked with graffiti and piles of debris. The Court is mindful that an impulse may exist for the EPA to "just get it all done," by demolishing the structure on the Site solely to get rid of it. However, if the EPA can conduct all necessary testing and removal work without demolishing the structure or without demolishing parts of the structure, such demolition work would be arbitrary and capricious as it has no
Yet, as with the degree of contamination present on a given site, courts must defer to the EPA's judgment with respect to its removal plan. See United States v. Saporito, No. 07 C 3169, 2011 WL 2473332, at *3 (N.D.Ill. June 22, 2011) (explaining that determining the appropriate removal action "involves specialized knowledge and expertise," and is reserved to the discretion of the EPA for that reason). Courts can conduct the balancing required by Tarkowski while still deferring to the EPA's expertise. Tarkowski requires that the United States demonstrate that there is a hazard that justifies a remedial effort before authorizing the EPA to conduct such an effort. 248 F.3d at 601. The Court reads Tarkowski to stand for the proposition that when there is evidence of substantial contamination that the EPA determines must be abated, courts should confirm that the EPA's plan is not so expansive that it reaches beyond the necessary remedial action. Such a reading is consistent with Judge Ripple's gloss on the opinion, which is that the contemplated remedy should not "seem significantly disproportionate to the perceived violation." Id. at 603 (Ripple, J. concurring).
The Court concludes that the United States has satisfied Tarkowski by presenting rational reasons related to the known harm presented by asbestos for seeking the sort of access that it does seek. See 248 F.3d at 601. For that reason, its proposed remediation plan is not arbitrary and capricious. See United States v. NCR Corp., 911 F.Supp.2d 767, 773 (E.D.Wis. 2012) (explaining that decisions are arbitrary and capricious when they are knee-jerk or rushed and appear to have no scientific basis, and cautioning that courts must "give the government agency significant discretion to select a remedy" and should "only overturn that remedy if it appears to be outside the bounds of what is reasonable."). The Court cautions, however, that this Order does not provide the EPA with blanket authority to simply demolish the structure on the Site. During the hearing, On-Scene Coordinator Thomas assured the Court that the EPA will only conduct demolition if it is necessary as part of cleanup or testing efforts. This includes the potential hazard that a part of the structure could collapse on EPA workers, a hazard that will be evaluated by a structural engineer. In his testimony, Defendant Thomason agreed with the demolition of the structure if necessary to facilitate removal of asbestos containing materials, to further inspection and testing for asbestos, and for safety reasons.
For the foregoing reasons, the Court respectfully rejects Magistrate Judge Hawley's Report and Recommendation (Doc. 6). Based upon the evidence provided by the United States in support of its Motion for Order in Aid of Immediate Access (Doc. 4), its Objection to the Report and Recommendation (Doc. 7), and the testimony of On-Site Coordinator Craig Thomas at the October 28, 2015 hearing, the Court concludes that the EPA's demand for entry onto the Site to conduct necessary removal and testing is not arbitrary and capricious. Therefore, the Court GRANTS the United States' Motion for Order in Aid of Immediate Access. (Doc. 3).
IT IS HEREBY ORDERED AS FOLLOWS:
1. The EPA, including its officers, employees, contractors, and representatives, is authorized to immediately enter the Site, pursuant to Section 104(e) of CERCLA, 42 U.S.C. § 9604(e), for the purposes of performing additional sampling and conducting a removal action at the Site, for a
2. The EPA is allowed access for the following activities:
3. The EPA shall further have the authority to bar any other persons from the Site, including Defendants Donna Gearing and Larry Thomason.
4. Federal, state, and/or local law enforcement personnel are also allowed access to the Site for the duration of this Order for the purpose of providing security to personnel and equipment on the Site.
5. Defendants Donna Gearing and Larry Thomason shall permit the EPA, including its officers, employees, contractors, and representatives, to enter onto the Vermont School Site for the purposes described in this Order, and shall refrain at all times from any interference with such entry and conduct of EPA activities at the Site.
6. This Order shall remain in effect until it expires or is modified by the Court.
As this Order grants the relief that the United States seeks in its Complaint (Doc. 1), this CASE IS TERMINATED.
