The opinion of the court was delivered by: LARIMER
Plaintiff, Ronald Patton, commenced this action pursuant to the citizen suit provisions of § 304 of the Clean Air Act ("the Act"), 42 U.S.C. § 7604. Plaintiff alleges that during 1993, at which time he was employed by defendant General Signal Corporation ("General Signal") at its Lightnin Facility ("the Facility") at 135 Mt. Read Boulevard in Rochester, New York, General Signal hired defendant Robert F. Hyland & Sons, Inc. ("Hyland") to perform renovations at the Facility. Plaintiff alleges that as part of the renovations, Hyland removed substantial amounts of regulated asbestos-containing material ("RACM") from the Facility. Plaintiff further alleges that defendants violated § 112 of the Act, 42 U.S.C. § 7412, and the National Emission Standards for Hazardous Air Pollutants for Asbestos, 40 C.F.R. Part 61, Subpart M ("the asbestos NESHAP"). As a result of these violations, plaintiff alleges that he was exposed to asbestos, putting him at risk of lung disease. Plaintiff's first cause of action is based upon the Act, and his second cause of action asserts a negligence claim under New York law. Plaintiff seeks civil penalties pursuant to 42 U.S.C. § 7413(b), costs of future medical monitoring for himself, and costs and attorney's fees.
Defendants have moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. General Signal also moves under Rule 56(e) to strike portions of plaintiff's affidavit sworn to on May 9, 1997. Plaintiff has filed a cross-motion for summary judgment on the issue of defendants' liability on plaintiff's first cause of action. Plaintiff has also filed a motion to strike portions of the affidavits of Mark Ocwieja and Todd Young, which General Signal submitted in support of its motion for summary judgment. In the alternative, plaintiff moves pursuant to Rule 56(f) for a continuance of the summary judgment motions pending a period of discovery.
Plaintiff alleges that he worked at General Signal from January 1991 until he went on disability leave on account of a back injury on October 19, 1993. In 1993, General Signal decided to reorganize certain of its operations at the Facility, which necessitated a renovation. General Signal hired Hyland as the general contractor for the renovation. Plaintiff, who was certified as an asbestos handler in March 1993, was assigned to help oversee the renovation.
Plaintiff alleges that during the renovation, defendants removed large amounts of RACM at various sites in the Facility. He claims that defendants violated the Act and the asbestos NESHAP by: failing to notify the Environmental Protection Agency ("EPA") of demolition or renovation activity; failing to follow prescribed procedures for asbestos emission control; and failing to properly dispose of waste RACM. He alleges that "asbestos was being thrown around like sacks of flour," and that "numerous employees (including [plaintiff]) were showered with asbestos, and inhaled large quantities ..." of the material. Patton Aff., May 9, 1997, PP 23, 24.
One part of the project of particular significance in this case involved the renovation in October 1993 of an employee locker room (referred to by the parties as "the men's locker room" or "locker room number 1"). It is undisputed that there were asbestos-related problems with this project, but the parties disagree about the nature, cause, and extent of the problems. Plaintiff alleges that between October 7 and 14, RACM was removed from the locker room without notification being given to the EPA and without proper handling procedures. EPA notification, and the use of proper procedures, is mandated by EPA regulations when the amount of RACM involved is at least 260 linear feet on pipes or 160 square feet on other components, or 35 cubic feet where the length or area could not be measured previously. 40 C.F.R. § 61.145(a)(1). Plaintiff asserts that the amount of RACM removed from the locker room far exceeded the threshold amount.
Defendants paint an entirely different picture. According to defendants, one of Hyland's subcontractors, Monroe Piping & Sheet Metal Inc. ("Monroe"), moved a single hot water tank in the locker room that was covered with asbestos-containing insulation. General Signal contends that Monroe "accidentally disturbed the insulation ..." General Signal's Statement of Undisputed Material Facts ("Rule 56 Statement") P 7. Hyland states that Monroe disconnected the tank and then asked Hyland to move it. According to Hyland, a Hyland employee, believing (like everyone else in the area at that time) that the insulation was fiberglass, moved the tank about fifteen to twenty feet with a forklift. It then occurred to someone that the insulation might contain asbestos. The plant engineer, Mark Ocwieja, was notified, and he in turn contacted Marcor Environmental, Inc. ("Marcor"), a licensed asbestos abatement contractor. Marcor inspected the site on October 14, and began work the same day. According to General Signal, Marcor completed the cleanup on October 19, 1993.
General Signal alleges that Marcor removed approximately 62.8 square feet of insulation from the water tank, and about 23 linear feet of insulation from water pipes. General Signal states that Marcor also removed about 25 linear feet of pipe insulation that had previously been put in an asbestos waste storage bin at the Facility. If that is true, the removal of those amounts would not trigger the EPA regulations concerning notice and procedures. 40 C.F.R. § 61.145(a)(4).
Plaintiff disputes defendants' assertions and alleges that even prior to Marcor's arrival on the scene, asbestos was illegally removed from the locker room without proper procedures or notification to EPA. Plaintiff contends that the 35-cubic-feet standard should apply because the length or area could not have been measured previously. He alleges that a waste shipment manifest prepared by Marcor records prove that some 6.5 cubic yards, or 175.5 cubic feet, of RACM was removed by Marcor. He also claims that even if the linear threshold applies, it was exceeded because, by plaintiff's calculation, the pipes involved must have had about 690 linear feet of insulation.
Plaintiff further alleges that the locker room project was "just a small piece" of the entire asbestos removal program. Patton Aff., May 9, 1997, P 26. He alleges that large quantities of RACM were removed in other projects without the required notice to the EPA.
Plaintiff also alleges that throughout 1993, defendants "repeatedly and illegally disposed of asbestos by mixing it in with concrete and other debris in dumpster, [sic] and passed off to landfill operators as construction and demolition debris." Patton Aff., May 9, 1997, P 51. He states that New York State Department of Environmental Conservation records show that Hyland disposed of over sixty tons of debris at a landfill in 1993, and that this debris "undoubtedly ... included large quantities of RACM." Patton Aff., May 9, 1997, P 53.
After reviewing the record, I find that summary judgment for any party would be inappropriate at this stage. The pleadings raise several issues of material fact that cannot be resolved at this stage of the case, especially since the parties have had virtually no opportunity for discovery.
I. Plaintiff's Motion for Summary Judgment
Plaintiff moves for summary judgment against both defendants on plaintiff's first cause of action under the Act. Plaintiff bases this motion on two documents. One is Marcor's waste shipment manifest dated November 5, 1993, which states that 6.5 cubic yards of friable asbestos were shipped from the Facility. Patton Aff. (Item 15) Ex. N. The other document is a settlement agreement between General Signal and the Occupational Safety and Health Administration ("OSHA") concerning certain asbestos-related violations by General Signal. Id. Ex. G.
Neither of these documents can support summary judgment for plaintiff at this stage. The Marcor manifest was not prepared by General Signal or Hyland, and there is no evidence that either defendant ever adopted the statements contained in it. It may constitute some evidence of the amount of asbestos that Marcor removed, but it certainly is not conclusive proof of anything at this stage.
II. Defendants' Motions for Summary Judgment on the Clean Air Act Claim and Plaintiff's ...