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ASBESTOS ENFORCEMENT: STRICT LIABILITY FOR BUILDING OWNER?

December 02, 2013

Category: Arkansas Environmental, Energy, and Water Law

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Author: Walter G. Wright

In State v. Musleh, the Court of Appeals of Ohio addressed the issue of whether Ghassan Musleh (the "Defendant") was liable for statutory violations under Ohio's counterpart to the federal Clean Air Act that occurred at his commercial building, even though the Defendant did not know of or take part in the violations. Sec 2-13 WL 5447977 (Sept. 24, 2013).

In 2005, Mahoning-Trumbill Air Pollution Control Agency ("MTAPCA"), which contracts with the Ohio Environmental Protection Agency, received an anonymous tip that plaster was being removed from the Defendant's building. The MTAPCA sent inspectors to the building and found several piles of plaster, a tractor-trailer parked outside beneath a window that contained wooden lathes and other loose plaster debris, and plaster debris scattered in the grass surrounding the trailer. The inspectors took samples of the plaster, which were later found to contain to be classified as asbestos. The inspectors concluded that the regulated asbestos-containing material ("RACM") was being removed from the building and tossed out the window into the trailer; these actions are in violation of the law set forth under Ohio's Clean Air Act regarding asbestos removal.

The Attorney General filed a complaint in November 2010 claiming the Defendant: (1) failed to obtain a thorough asbestos inspection of the facility where a renovation operation was going to occur; (2) failed to notify Ohio EPA prior to the commencement of the renovation; (3) failed to remove RACM from the facility prior to the activity; (4) failed to have an authorized representative trained under the Ohio Adm. Code Chapter 3745-20 present on location of the renovation operation; and (5) failed to keep asbestos-containing waste material, which was not removed prior to renovation, adequately wet. The five counts reflected violations of five different statutory regulations.

A magistrate held that there was no evidence that the Defendant or anyone on his behalf had conducted a renovation, therefore, he had not violated the law. On May 29, 2012, the trial court affirmed the magistrate's decision, but for different reasons. The trial court found that the removal of personal property, property belonging to homeless people who had been illegally residing in the building, did not equate to remodeling"”which was necessary to prove in order to support a guilty verdict under the law. The trial court also ruled that the state failed to present any evidence that remodeling was occurring or had ever occurred.

The Ohio Adm. Code has certain procedures that apply to the demolition or renovation of a facility containing asbestos and to the concomitant removal of that asbestos from the facility, transporting, or deposition of any asbestos-containing waste material discharged to the outside air.

The State argued on appeal that the trial court erred as a matter of law by failing to apply the correct definition of renovation. It cited the trial court's use of the terms "remodeling" and "modification."

The Court of Appeals of Ohio found this argument to be unwarranted. Ohio regulations define renovations as "altering a facility or one or more facility components in any way, including the stripping or removal of regulated asbestos-containing material from a facility component." Ohio Adm. Code 3745-20-01(B)(44). Remove means "to take out [RACM] or facility components that contain or are covered with [RACM] from any facility." Ohio Adm. Code 3745-20-01(B)(43). The appellate court ruled that the state misconstrued the import of the trial court's use of the "remodeling" and "modification" terms. While employing slightly different terminology in its affirmance and modification of the magistrate's decision, the court did not use a different standard or definition in evaluating the evidence. The trial court simply evaluated the evidence differently than the magistrate and rejected the State's contention that the evidence showed that asbestos was removed from the building.

The State also argued that the trial court ruled against the manifest weight of the evidence when it held that the State failed to provide evidence that the building had been renovated. It noted there was asbestos contaminated plaster in piles on the second floor of the building, scattered on the ledge of the second floor window, and scattered on the grass surrounding the trailer into which wooden lather and plaster had been thrown. While the magistrate acknowledged that renovation and removal of asbestos had occurred, he concluded that the Defendant was not the person who caused such removal and renovation. The trial court subsequently found subsequently that no renovation or removal had ever taken place.

The appellate court held that the trial court erred in concluding that the State failed to present any evidence that a renovation had occurred and that there was competent, credible evidence indicating that such activity had taken place. There was testimony and photographs revealing the plaster all over the building and even outside the building. In addition, the plaster removed from the building and the grass surrounding the trailer tested positive for prohibited levels of asbestos.

Finally, the State argued that the trial court erred as a matter of law by failing to impose strict liability upon the Defendant as the owner of the building. Although the Defendant testified that he had no idea this activity was or had occurred at his building, that he had only bought the building to prevent someone else from opening a store that would compete with his convenience store, and that he planned on leaving the building vacant, the appellate court found that, under the Ohio regulations, the Defendant is strictly liable for the removal and renovation of the asbestos without following the rules and restrictions outlined in the statute. The statute provides that "[n]o person shall cause, permit, or allow emission of an air contaminant in violation of any rule adopted by the director of environmental protection." In addition, it states that "[n]o person shall violate any order, rule, or determination of the director issued, adopted, or made under this chapter."

The appellate court held the Clean Air Act's central purpose is to "protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." The legislature enacted the civil penalty provision to provide strict liability for violations of the Act. Furthermore, "[c]ourts have consistently held that the civil penalty provision imposes strict liability on both owners and operators." Beerman Realty Co. v. Alloyd Asbestos Abatement Co., 100 Ohio App. 3d 270, 275, 653 N.E.2d 1218 (2d Dist. 1995). Thus, because the State presented competent, credible evidence that renovation and removal of RACM had occurred in the Defendant's building, the Defendant is strictly liable for the penalties stemming from renovating and removing RACM without abiding by statutory regulations. The judgment of the trial court was reversed and remanded.

A copy of the decision can be downloaded below.

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