Airport Expansion Violated Clean Air Rules, Lawsuit Says

Although the new runway at Lambert-St. Louis International Airport has been open since April, a legal fight surrounding the airport expansion still rages on. A case pending in federal court charges the city of St. Louis and the St.Louis Airport Authority violated environmental laws when it demolished more than 250 buildings using a controversial method of asbestos removal. Close to 2,000 buildings were demolished for this expansion project. The city argues it could not have violated the Clean Air Act or the National Emissions Standards for Hazardous Air Pollutants because throughout the demolition process it cooperated in good faith with the U.S. Environmental Protection Agency, the Missouri Department of Natural Resources and the St. Louis County Department of Health. Using this basic argument, the city filed a motion for summary judgment, which is currently before Chief U.S. District Judge Carol E. Jackson. Also before the judge is a motion filed by the plaintiffs for partial summary judgment on the city's liability for 100 violations of the Clean Air Act and for declaratory and injunctive relief. The disputed method of asbestos control is known as the "wet method," in which a building is wetted down to keep the asbestos from blowing away during demolition. According to the document filed by the city in support of its summary judgment motion, this wet method was approved by the MDNR and the county health department until 2003, and early in 2003 the city obtained the approval of the EPA to continue using the method. The plaintiffs - a group of residents and former residents of Bridgeton, assisted by lawyers from Great Rivers Environmental Law Center and Trial Lawyers for Public Justice - say the city violated the law because the EPA never provided public notice of the proposal to approve this alternative asbestos control method or held a public hearing on the proposal. In addition, state and local governments may not impose requirements that are less stringent than the National Emissions Standards for Hazardous Air Pollutants, argue the plaintiffs, citing Clean Air Act and EPA regulations. In response to an MDNR inquiry in 2002, the EPA said the city could assume a building consisted of regulated asbestos-containing material and demolish that building using the wet method without violating NESHAP, according to the city's court filing. But a few months later, in January 2003, the EPA said in a letter that the RACM would have to be removed prior to demolition. That's when the county health department stopped issuing approvals for wet demolitions. But, the city added, the EPA and the city entered into an administrative order on consent in April 2003 that allowed the city to use the wet method to demolish three specific commercial buildings and allowed the parties to amend the AOC to permit the wet demolition of other commercial buildings. The AOC also said the county health department, after consulting with the EPA, could permit on a case-by-case basis the wet demolition of residential buildings without removing RACM from wall systems or ceilings. "It is undisputed that all of the demolitions using the 'wet method' were approved by the County Department of Health, MDNR or EPA during the entire project," argues the city, citing the deposition of Joletta Golik, the environmental health manager on the project. "FACTS has neither alleged nor adduced evidence that defendants violated any of these approvals, or that any enforcement agency ever cited defendants for violating any applicable regulation, statute or regulatory approval. " The city also argues it did more to comply with NESHAP than required by law because NESHAP's definition of "facility" excludes "residential buildings having four or fewer dwelling units. " The plaintiffs counter that the residential buildings at issue were part of an "installation," which NESHAP defines as a building or a group of buildings at the same site "under the control of the same owner or operator. " As such, these residential installations are not exempt from NESHAP, the plaintiffs argue. The parties also dispute whether the wet demolition actually harmed the environment. The city says more than 200 air-monitoring tests were taken over 3 1/2 years during the project to determine the asbestos concentration both upwind and downwind of the project. The tests found an average downwind concentration of less than 0.02 fib/cc and upwind concentrations that were "not statistically different" than the downwind concentrations. There is also no evidence of asbestos left in the soil, argues the city, adding that if there were asbestos left in the soil it's unlikely to become airborne. It bases these assertions on a report by Dr. William Dyson. The plaintiffs argue Dyson's report wasn't based on soil sampling but rather on an assumption of the type of asbestos present - and an incorrect assumption at that. According to the plaintiffs, the type of asbestos present, amosite asbestos, is 100 times more carcinogenic than the chrysotile asbestos Dyson assumed for his report. In response, the city argues the plaintiffs have no evidence to support their claim because they offered no expert report to rebut Dyson's conclusions. Finally, the two parties argued about whether the plaintiffs could bring a claim under the Resource Conservation and Recovery Act, which, according to the U.S. Supreme Court's 1996 decision in Meghrig v. KFC Western Inc., permits citizen suits "only upon a showing that the solid or hazardous waste at issue 'may present an imminent and substantial endangerment to health or the environment. '" The plaintiffs have no evidence of an imminent and substantial endangerment, argues the city, quoting from an assertion in the plaintiffs' complaint that they "will not know for many years whether their health has been compromised. " But "may present" are the operative words, say the plaintiffs, relying on Parker v. Scrap Metal Processors, a 2004 decision out of the 11th U.S. Circuit Court of Appeals, which found the "plaintiffs must [only] show that there is a potential for an imminent threat of serious harm. "

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