06/05/90

Inclusion of CERCLA Section 103(a) Counts in Asbestos NESHAP Cases


MEMORANDUM

SUBJECT:  Inclusion of CERCLA Section 103(a) Counts in Asbestos
          NESHAP Cases

FROM:     /s/  Michael S. Alushin
               Associate Enforcement Counsel
                 for Air

          /s/  Glenn L. Unterberger
               Associate Enforcement Counsel
                 for Superfund

TO:       Regional Counsels
          Regions I-X


I.   INTRODUCTION

    The Comprehensive Environmental Response, Compensation, and Liability
Act ( CERCLA ) requires notification to the National Response Center
immediately following the release of a hazardous substance in an amount that
exceeds its reportable quantity.  42 USC Section 9603.  Asbestos is a CERCLA
hazardous substance.  42 USC Section 9601(14); 40 CFR Section 302.4.
Accordingly, we encourage regions to review asbestos NESHAP referrals for
determination of whether CERCLA causes of action also exist.  The purpose of
this memorandum is to assist that effort by identifying the elements
necessary to establish a CERCLA Section 103(a) claim and providing a legal
analysis of relevant statutes and regulations.  In addition, this memorandum
discusses criteria for selecting cases to add CERCLA counts and suggests a
$15,000 minimum settlement penalty amount for each violation.  1/
  1/ A draft CERCLA Section 103 penalty policy currently exists.  Regions
    should apply that policy when it becomes final ( to be issued as OSWER
    Dir. No. 9841.2 ).

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We recommend that CERCLA Section 103(a) violations be alleged when prima
facie evidence exists.  2/

  2/ The Emergency Planning and Community Right-to-Know Act of 1986
    ( EPCRA ) similarly demands that a release of a reportable quantity of
    an "extremely hazardous substance" or CERCLA "hazardous substance" be
    reported to the local Emergency Planning Committee and the State
    Emergency Response Commission for the area likely to be affected by the
    release.  42 USC Section 11004.  In contrast to the CERCLA Section
    103(a) reporting requirements, which apply to any facility, the EPCRA
    Section 304 conditions apply solely to a facility that "produces,"
    "uses" or "stores" hazardous substances or chemicals.  Thus, asbestos
    demolition or renovation operations are not universally subject to
    Section 304 reporting requirements.  Cases may exist, however, where it
    is appropriate to allege both EPCRA and CERCLA counts.

II. ELEMENTS FOR A SECTION 103(a) CLAIM

    Pursuant to Section 103(a) of CERCLA, a person in charge of a facility
is required to notify the National Response Center as soon as he or she has
knowledge of a release of a hazardous substance from such facility in an
amount equal to or greater than the reportable quantity for that substance.
The failure to report the release subjects the non-reporting party to
judicial or administrative proceedings and penalties of up to $25,000 per
day of the violation.  42 USC Section 9609(a),(b) and (c).  Penalties of up
to $75,000 per day may be imposed in the case of a second violation.  Id.
3/

  3/ CERCLA also authorizes criminal sanctions for the failure to report the
    release of hazardous substances.  42 USC Section 9603(b).  While the
    elements of a Section 103(b) claim are substantially the same as a
    Section 103(a) claim, the United States' burden of proof would be higher
    in a Section 103(b) criminal prosecution.  Because the Air Enforcement
    Division docket consists of civil referrals, this memorandum discusses
    exclusively Section 103(a) ( civil ) liability.  Regions are
    nevertheless reminded of the availability of including Section 103(b)
    counts in criminal asbestos NESHAP cases filed under Section 113(c) of
    the Clean Air Act.

    Thus, in order to prevail on a CERCLA Section 103(a) count the United
States must establish that a) the defendant is a person; b) the defendant
was in charge of a facility from which there was a release of a hazardous
substance; c) the quantity of the substance released was equal to or
exceeded the reportable quantity for that substance; and d) the defendant
did not notify the National Response Center as soon as it had knowledge of

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the release.  The CERCLA definitions of key terms follow next.

    A.  Defined Terms.

1.  Person -- the term includes individuals, firms, corporations,
associations and other entities, such as federal, state and local government
units.  42 USC Section 9601(21).

2.  Facility -- the term includes any building, structure, installation,
impoundment, landfill or site where a hazardous substance is located.  42
USC Section 9601(9).

3.  Release -- the term covers virtually any contact with the environment,
including any spilling, leaking, pumping, pouring, emitting, discharging,
injecting, escaping, leaching, dumping or disposing into the environment.
The term also includes the abandonment or discarding of barrels or other
closed receptacles that contain hazardous substances.  Expressly excluded
from the definition of release is any release which results in exposure to
persons solely within a workplace.  42 USC Section 9601(22).

4.  Environment -- the term includes navigable waters, ocean waters, surface
waters, the drinking water supply, groundwater, land surface or subsurface
strata, or ambient air.  42 USC Section 601(8).  The preamble to the
reportable quantity regulations makes clear that the notification
requirements do not apply to releases within wholly enclosed structures.  50
Fed. Reg. 13456, 13462 ( April 4, 1985 ).  Several court rulings further
indicate that a building interior is not the "environment" for CERCLA
purposes.  Covalt v. Carey Canada, Inc., 860 F.2d 1434 ( 7th Cir. 1988 );
First United Methodist Church of Hyattsville v. United States Gypsum Co.,
No. JH-88-2030, slip op. at 11 ( D.Md. Oct. 13, 1988 ).  However, a release
"into the environment" occurs if the discharge remains on grounds controlled
by the facility owner or operator.  50 Fed. Reg. at 13462.

5.  Hazardous Substance -- the term is defined to incorporate substances and
chemicals regulated under environmental statutes other than CERCLA,
including the Clean Air Act.  42 USC Section 9601(14).  As noted before,
asbestos is a CERCLA hazardous substance.  Id; 40 CFR Section 302.4

6.  Reportable Quantity -- the reportable quantity for asbestos is one
pound.  40 CFR Section 302.4.  Importantly, the reportable quantity is
limited to the friable form of the mineral.  Id.  Even though CERCLA
regulations do not define the term "friable asbestos," the reportable
quantity should not be interpreted to include one pound of "any material
containing more than 1 percent asbestos by weight that hand pressure can
crumble...." 40 CFR Section 61.141 ( definition of friable asbestos under
Clean Air Act ).  Because the reportable quantity is restricted to the
hazardous

                                   - 4 -

substance component of a solution or mixture, 40 CFR Section 302.6, one or
more pounds of pure friable asbestos must be released for Section 103(a) to
apply.  Liability is further conditioned on the release of the reportable
quantity within one twenty-four hour period.  40 CFR Section 302.6.

    B. Undefined Terms.

    As indicated, CERCLA provides definitions for most of the pertinent
Section 103(a) terms.  Neither the statute nor the regulations, however,
give meaning to the phrase "in charge...of [a! facility."  4/

  4/ The preamble to the CERCLA reportable quantity regulations only states
    that the term "person in charge" is defined on a case specific basis,
    depending on the specific operation involved and other considerations.
    50 Fed. Reg. at 13460.

  For the purpose of alleging CERCLA violations in asbestos NESHAP cases, it
may be assumed generally that the "owners" and "operators" liable for
asbestos NESHAP violations are similarly liable for violations of Section
103(a).  A person "in charge" of the facility could fairly be construed as
the one who "owns, leases, operates, controls, or supervises" the demolition
operation.  40 CFR Section 61.02 ( NESHAP definition for owner or
operator ).  Moreover, one court has ruled that the reporting requirements
extend to any person able to discover, prevent and abate the release of a
hazardous substance.  United States v. Carr, 880 F.2d 1550 ( 2nd. Cir.
1989 ).

    Although Section 103(a) liability requires that a person have "knowledge
of any release...of any hazardous substance," CERCLA does not define the
knowledge requirement.  Case law interpreting provisions of other
environmental statutes may provide guidance.

    In United States v. Hayes Intern Corp., 786 F.2d 1499 ( 11th Cir.
1986 ), the Eleventh Circuit Court of Appeals considered the meaning of
"knowingly" in Section 3008(d) of the Resource Conservation and Recovery
Act, 42 USC Section 6928(d) ( RCRA ), which authorizes criminal sanctions
for "[a!ny person who knowingly transports... any hazardous waste... to a
facility that does not have a permit...."  The Hayes Court rejected the
defendant's defenses that it was ignorant of the permit requirement and the
RCRA hazardous waste status of the material transported.  Id. at 1503.  The
court concluded that the United States met its burden of proof by
demonstrating that a) the defendant knew what the waste was ( in that case,
a mixture of paint and solvent ) and b) the defendant knew that the disposal
facility was not permitted.

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  Id. at 1505.  The court further noted that the United States may prove
knowledge with circumstantial evidence.  Id.

     To the extent an analogy can be drawn between the RCRA definition of
"knowingly" and the CERCLA definition of "knowledge," application of Hayes
suggests the following conclusions:  First, liability attaches
notwithstanding the defendant's failure to know of the reporting
requirements or failure to know that asbestos is a CERCLA hazardous
substance.  Second, the United States must establish that the defendant knew
or should have known of the release and that the material was asbestos.
Third, the United States' burden of proving "knowledge of any release"
should be less than the burden imposed in the Hayes case.  As a general
proposition, the burden of proof in a civil case is less than the burden of
proof in a criminal case.  Because the Hayes Court interpreted RCRA Section
3008(d) ( a criminal provision ), the United States' burden of proof under
CERCLA Section 103(a) ( a civil provision ) should therefore entail a lower
standard than required in Hayes.

    C. Exempted Releases.

    It is important to note that discharges in accordance with federal
permits are exempt from the CERCLA reporting requirements.  42 USC Sections
9601(10) and 9603(a).  Also exempt are  continuous releases which are stable
in size and quantity.  42 USC Section 9603(f).  Neither of these two
exemptions or any other CERCLA Section 103 exemptions apply to asbestos
NESHAP renovation and demolition cases.  This memorandum thus addresses
criteria for including CERCLA counts.

III. CRITERIA FOR INCLUSION OF CERCLA SECTION 103(a) COUNTS IN ASBESTOS
NESHAP CASES

    As stated previously, the CERCLA definition of release includes any
"dumping, or disposing into the environment" and "the abandonment or
discarding of barrels...or other closed receptacles containing hazardous
substances...."  42 USC Section 9601(22).  Consequently, particular
attention should be paid to cases that allege violations of the asbestos
disposal requirements.  See 40 CFR Sections 61.151(a) and 61.156.

    A Section 103(a) claim may be particularly appropriate if the evidence
indicates that a) asbestos waste material remained on site after the
completion of the demolition in violation of 40 CFR Sections 61.152(a) and
61.156 or (b) asbestos waste was transported to or deposited at a location
not qualified as an "active waste disposal site" within the meaning of 40
CFR Section 61.156.  Assuming, for example, that the waste material weighed
at least ten pounds, the reportable quantity is satisfied provided the waste
consisted of ten percent friable asbestos.

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Moreover, if a large quantity of asbestos was present, there is
circumstantial evidence that the release occurred within one twenty-four
hour period.  Liability may arise even if the asbestos was stored in sealed
containers; the definition of release covers the abandonment of receptacles.

    CERCLA claims should not be limited to cases that involve conduct
prohibited by the asbestos NESHAP disposal provisions.  Because of the
unique circumstances of each referral, the question whether to allege a
Section 103(a) violation must be decided on a case-by-case basis.  Given the
prospect of obtaining significant penalties and further deterring
violations, we encourage adding CERCLA counts when prima facie Section
103(a) evidence exists.  Also, we presently recommend a bottom-line
settlement figure of $15,000 for each Section 103(a) violation.   The
proposed figure is consistent with the Clean Air Act Civil Penalty Policy
provision that sets the minimum penalty amount for reporting violations at
$15,000.  When the CERCLA Section 103 penalty policy becomes effective,
regions should calculate settlement penalties in accordance with that
guidance.

    Finally, we note that a number of criminal indictments have charged
violations of the CERCLA reporting requirements.  United States v. Charles
A. Donohoo, Jr., Cr. 89-00057, W.D.Ky.;  United States v. Cuyahoga Wrecking
Co., Cr. 88-497, C.D. Ca.;  United States v. DAR Construction, Inc., Cr.
88-65, S.D.N.Y.;  United States v. Fineman, Boone and D'Avocato, Cr. 88-543,
E.D.Pa.  In each of these asbestos NESHAP cases, violations of 40 CFR
Section 61.152(a) gave rise to the CERCLA Section 103 counts.  In all cases
litigated to judgment, the defendants pled guilty or were acquitted on the
CERCLA charges.  Attached for your information is a copy of an indictment.

    If you have any questions about this memorandum, please call Karen
Schapiro of the Air Enforcement Division ( FTS 382-6240 ).

Attachment

cc: Regional Counsel Air and Superfund Branch Chiefs
    Regions I-X

    Air Compliance Branch Chiefs
    Regions I-X

    NESHAP Regional Counsel Contacts
    Regions I-X

    NESHAP Regional Coordinators
    Regions I-X

    AED Attorneys

                                   - 7 -

    John Seitz, Director
    Stationary Source Compliance Division

    Omayra Salgado
    Stationary Source Compliance Division

    Bruce Diamond, Director
    Office of Waste Programs Enforcement

    Scott Fulton, Director
    Office of Civil Enforcement

    Paul Thomson, Director
    Office of Criminal Enforcement

    David Buente
    Chief, Environmental Enforcement Section
    Land and Natural Resources Division
    U.S. Department of Justice

                       UNITED STATES DISTRICT COURT
                       WESTERN DISTRICT OF KENTUCKY
                               AT LOUISVILLE

_______________________________________
                                       )
UNITED STATES OF AMERICA               )
                                       )
vs.                                    )    INDICTMENT
                                       )
CHARLES A. DONAHOO, JR.                )    NO. CR 89-00057-01-L(J)
D/B/A CHARLIE WRECKING                 )    ( 18 USC Section 1001; 42 USC
                                       )    Sections 7412(c) & (e), 7413(c)
The Grand Jury charges:                )    and 9603(b) )
_______________________________________)

                            GENERAL ALLEGATIONS

    At all times relevant to this Indictment:

    1.   Defendant CHARLES A. DONAHOO, JR., D/B/A/ CHARLIE WRECKING, was
engaged in the business of wrecking and demolition in Jefferson County,
Kentucky.

    2.   Defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING,
contracted with Tuscarora Plastics, 816 South Eleventh Street, to demolish
and wreck a building on Tuscarora Plastics property, 831 South Twelfth
Street, Louisville, Kentucky.  The building, or facility, to be demolished
contained at least 260 linear feet of friable asbestos materials on pipes or
160 square feet on other facility components.  Friable asbestos materials
means any material containing more than one percent asbestos by weight that
hand pressure can crumble, pulverize or reduce to powder when dry.  The
materials are adequately wetted when sufficiently mixed or united with water
or an aqueous solution to prevent dust emissions.  Title 42, United States
Code, Section 7412.  40 CFR Section 61.141.

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Asbestos was formerly used as insulation material for pipes, tanks, ducts,
walls, and other structural components of buildings.

                         CLEAN AIR ACT PROVISIONS

    3.   The clean Air Act authorizes the United States Environmental
Protection Agency ( hereinafter EPA ) to establish emission standards for
hazardous air pollutants.  An air pollutant is hazardous if, in the judgment
of the Administrator of EPA, it causes or contributes to air pollution which
may reasonably be anticipated to result in an increase in mortality, or an
increase in serious irreversible or incapacitating reversible illness.
Title 42, United States Code, Section 7412(a)(1).

    4.   The Clean Air Act banned the emission of any hazardous air
pollutant in violation of any emission standard set by EPA.  Title 42,
United States Code, Section 7412(c)(1)(B), (e).

    5.   Asbestos is a hazardous air pollutant.  40 CFR Section 61.01(a).
Title 42, United States Code, Section 7412(a)(1).

    6.   Where the Administrator determines it is not feasible to prescribe
or enforce an emission standard for control of a hazardous air pollutant,
the Administrator may promulgate a design, equipment, work practice or
operational standard, or a combination thereof, which in the administrator's
judgment is adequate to protect the public health with an ample margin of
safety.  Any such design, equipment, work practice or operational standard
shall be treated as an emission standard.  Title 42, United States Code,
Section 7412(e)(5).  In conformity with the Clean Air Act, the EPA
established emission standards for asbestos in the form of work

                                   - 2 -

practice standards.  40 CFR Section 61.140 through 61.156.

    7.   The emission of asbestos, a hazardous air pollutant, from any
stationary source is prohibited.  A stationary source is any building or
structure which emits or may emit a hazardous air pollutant such as
asbestos.  40 CFR Section 61.02.

    8.   The demolition operation conducted by defendant CHARLES A. DONAHOO,
JR., D/B/A CHARLIE WRECKING, is a stationary source under the Clean Air Act
and CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, is an operator of that
stationary source.  Title 42, United States Code, Section 7411(a)(3) and
(a)(5), 40 CFR Section 61.02.

    9.   The work practice or operational standards applicable to each owner
or operator of a demolition operation involving the requisite amount of
friable asbestos material require notification as follows:

         (a)  Each owner or operator shall provide the Administrator with
         written notice of intention to demolish or renovate;

         (b)  Provide such notice at least ten days before the demolition
         operation is began;

         (c)  Identify the name and address of the owner or operator;

         (d)  List the scheduled starting and completion dates of
         demolition;

         (e)  State the nature of the planned demolition and the methods to
         be used;

         (f)  State the procedures to be used to comply with the safety
         requirements and work practice requirements of the regulations;

         (g)  Estimate the approximate amount of friable asbestos material
         present in the facility in

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         terms of linear feet of pipe and the surface area on other facility
         components of friable asbestos material; and

         (h)  List the waste disposal site where the friable asbestos waste
         material will be deposited.  40 CFR Section 61.146.

    10.  Additional work practice requirements for the prevention of
emissions of asbestos-containing materials to the outside air mandate:

         (a)  That friable asbestos materials be removed from the facility
         being demolished before any wrecking or dismantling that would
         break up the asbestos materials or preclude access to the asbestos
         materials for subsequent removal; or

         (b)  That any friable asbestos materials are adequately wetted when
         they are being stripped from the facility;

         (c)  That friable asbestos materials that have been removed or
         stripped from the building are adequately wetted in order to ensure
         that they remain wet until collected for proper disposal;

         (d)  Make certain that friable asbestos materials that have been
         removed or stripped be carefully lowered to the ground and not
         dropped or thrown to the ground or a lower floor; and

         (e)  That all asbestos-containing waste material is properly
         deposited at waste disposal sites operated in accordance with EPA
         regulations.

Title 42, United States Code, Section 7412.  40 CFR Section 61.141, et seq.

    11.  Each state may develop and submit to the EPA Administrator the
procedure for implementing and enforcing emission standards for hazardous
air pollutants for stationary sources located in the state.  If the
Administrator finds the state procedure is adequate,

                                   - 4 -

he shall delegate to such state any authority he has under this chapter to
implement and enforce such standards.  Title 42, United States Code, Section
7412(d)(1).  Nothing in this subsection shall prohibit the EPA Administrator
from enforcing any applicable emission standard under this section.  Title
42, United States Code, Section 7412(d)(2).  Kentucky has been delegated
such authority and the Jefferson County Air Pollution Control District has
concurrent authority with Kentucky under K.R.S. 77.  The Jefferson County
Air Pollution Control District ( hereinafter APCD ) has promulgated
regulations identical to CFR Section 140 through 156 under Regulation 5.04,
Emission standard for asbestos.

                          CERCLA ( "SUPERFUND" )

    12.  The Comprehensive Environmental Response Compensation and Liability
Act ( "CERCLA" ), also known as "Superfund" addresses the release and
threatened releases of hazardous substances.  Title 42, United States Code,
Section 9601, et. seq.  Asbestos is a hazardous substance under CERCLA.
Title 42, United States Code, Section 9601(14).  40 CFR Part 302.

    13.  Under CERCLA, any person in charge of a facility from which more
than one pound of asbestos is released into the environment, without federal
permit, must immediately report, and cause the report of this release to the
appropriate agency of the United States Government, as soon as he has
knowledge of said release.  Title 42, United States Code, Section 9603(a)
and (b) .  Title 42, United States Code, Section 9602.  40 CFR Section 302.

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    14.  A facility includes any building.  Title 42, United States Code,
Section 9601(9).  40 CFR Section 302.

    15.  A release into the environment includes any emitting, escaping or
disposing into the environment including dumping, discarding and abandoning.

Title 42, United States Code, Section 9601(22), (29).  Title 42, United
States Code, Section 9603.  Title 42, United States Code, Section 9602.  40
CFR Section 302.

             CONDUCT OF THE DEMOLITION AND WRECKING OPERATION

    16.  On or about November 26, 1986, the defendant, CHARLES A. DONAHOO,
JR., D/B/A CHARLIE WRECKING, did enter into a contract to wreck the building
"call Reynolds at corner of 12th & Garlad."

    17.  On or about January 7, 1987, Robert S. Sterritt, owner of Tuscarora
Plastics, did authorize CHARLES A. DONAHOO, JR., CHARLIE WRECKING, to secure
a wrecking permit to wreck the structure on the property located at 831
South Twelfth.  The applicant's signature was CHARLES A. DONAHOO, JR.

    18.  On January 22, 1987, Jack Baldwin, Inspector, Jefferson County Air
Pollution Control District, inspected the demolition site at 831 South
Twelfth Street.  Portions of the upper floors had been demolished and had
fallen, causing insulation to be knocked from pipes in the building.
Insulation had fallen and was lying under pipes.  There was exposure to the
outside air of asbestos and deterioration of the building from the wrecking.

Samples were taken of materials that scientifically tested to be asbestos
containing materials.

                                   - 6 -

    19.  Inspector Baldwin advised defendant CHARLES DONAHOO, JR., D/B/A
CHARLIE WRECKING that asbestos was believed to be present in the building
and that defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING. of the
notification and work practice requirements of APCD Regulation 5.04 -
Emission Standard For Asbestos.

    20.  On January 22, 1987, the City of Louisville, Department of Building
Inspection, at APCD Inspector Baldwin's request, posted a stop work order on
the premises at 831 South Twelfth for "failure to comply with air pollution
standards."  the notice stated "You are hereby ordered to immediately stop
all wrecking work at the above-named property until these violations have
been corrected."

    21.  As of January 22, 1987, defendant CHARLES A. DONAHOO, JR., D/B/A
CHARLIE WRECKING had failed to provide any written notification of intention
to demolish or renovate to APCD.  Defendant CHARLES A. DONAHOO, JR., D/B/A
CHARLIE WRECKING, had failed to provide notice of such demolition at least
ten days before it was begun.  CHARLES A. DONAHOO, JR., D/B/A CHARLIE
WRECKING, further failed to list the scheduled starting and completion date
of the demolition, to state the nature of the planned demolition and the
methods to be used.  Further, DONAHOO did fail to estimate the approximate
amount of friable asbestos-containing material present in the facility in
terms of linear feet on pipes and square footage of friable asbestos-
containing material on other facility components.  Further, DONAHOO had
failed to state

                                   - 7 -

the name and location of the waste disposal site where the friable asbestos-
containing waste material would be deposited.

    22.  On January 26, 1987, defendant CHARLES A. DONAHOO, JR., D/B/A
CHARLIE WRECKING, visited the APCD offices at 914 East Broadway, Louisville,
Kentucky, requested asbestos removal requirements, asked about potential
contractors certified to remove asbestos and received a copy of the EPA
publication "Guidelines for Controlling Asbestos-Containing Materials in
Buildings."

    23.  On February 11, 1987, defendant CHARLES A. DONAHOO, JR., D/B/A
CHARLIE WRECKING, again visited the APCD offices at 914 East Broadway,
Louisville, Kentucky, and received a form entitled Asbestos Removal
Notification.  CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, also
received a listing of current approved asbestos removal contractors.

    24.  On February 17, 1987, APCD sent, by certified mail, to defendant
CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, Violation Notice No. 87-
0012 for violations observed January 22, 1987.  The notice read, in
pertinent part, "any removal site shall be sealed in a manner to prevent
asbestos ambient air contamination.  Load supporting structures were being
demolished in a building at 831 South Twelfth Street without required prior
notification and without required use of procedures for asbestos emission
control."

    25.  On February 19, 1987, defendant CHARLES A. DONAHOO, JR., D/B/A
CHARLIE WRECKING, visited the APCD offices at 914 East Broadway, Louisville,
Kentucky, and presented an Asbestos Removal

                                   - 8 -

Notification form dated February 17, 1987.  The notification form submitted
by defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, list the
scheduled starting date for asbestos removal of February 22, 1987, and a
scheduled completion date for asbestos removal of February 23, 1987.  The
defendant, CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, estimate the
amount of friable asbestos material to be removed at "370 feet on a pipe and
a tank."  The defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING,
advised APCD personnel that he would prepare a plan for removal and bring it
to the APCD office on February 20, 1987.

    26.  On the morning of February 20, 1987, APCD Inspector Jack Baldwin
visited the demolition site at 831 South Twelfth Street and discovered that
the previously identified asbestos-containing material had been removed from
pipes and other plastic surfaces.  The asbestos-containing material had been
placed in open plastic bags.  There was no indication of adequate wetting or
other customary containing procedures required by law.  Samples were taken
of materials that scientifically tested as asbestos-containing materials.

    27.  On the afternoon of February 20, 1987, defendant CHARLES A.
DONAHOO, JR., D/B/A CHARLIE WRECKING, arrived at the offices of the APCD at
914 East Broadway, Louisville, Kentucky.  Mr. DONAHOO at that time presented
his removal plan by letter dated February 20, 1987.

    28.  On February 27, 1987, the APCD sent Violation Notices No. 87-0015
and 87-0016 to CHARLES A. DONAHOO, JR., D/B/A CHARLIE

                                   - 9 -

WRECKING, for violations observed February 20, 1987.  Violation Notice No.
87-0015 stated, in pertinent part, "friable asbestos material had been
removed from a building under demolition at 831 South Twelfth Street without
required prior notification and without required use of procedures for
asbestos emission control.  Violation Notice No. 87-0016, in pertinent part
"wrecking of load bearing structural members and stripping of friable
asbestos material had taken place at 831 South Twelfth Street without the
required permit having been issued by the district."

The Grand Jury charges:

                                  COUNT 1

    1.   Each of the allegations contained in paragraphs 1 through 28 of
this Indictment is realleged and incorporated herein by reference as though
fully set forth at length verbatim.

    2.   On or about and between January 9, 1987 and January 22, 1987, the
exact dates being unknown to members of the Grand Jury, in the Western
District of Kentucky at Louisville, Jefferson County, Kentucky, defendant
CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, operator of a stationary
source in Louisville, Kentucky, containing at least 260 linear feet of
friable asbestos material on pipes or 160 square feet on other facility
components, did knowingly demolish and cause to be demolished this
stationary source in violation of any of the emission, design, equipment,
work practice or operational standards for asbestos and knowingly caused

                                  - 10 -

asbestos to be emitted from this stationary source in violation of these
standards.

    In violation of Title 42, United States Code, Section 7412(c) and (e),
and Title 42, United States Code, Section 7413(c).

The Grand Jury further charges:

                                  COUNT 2

    1.   Each of the allegations contained in paragraphs 1 through 28 of
this Indictment is realleged and incorporated herein by reference as though
fully set forth at length verbatim.

    2.   From on or about and between January 7, 1987 and January 22, 1987,
the exact dates being unknown to members of the Grand Jury, defendant
CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, did being a person in
charge of a facility from which a reportable quantity of a hazardous
substance, asbestos, is released without a permit did fail to immediately
notify the appropriate agency of the United States Government of the release
of the hazardous substance as soon as he had knowledge of such release at
831 South Twelfth Street, Louisville, Kentucky.

    In violation of Title 42, United States Code, Section 9603(b).

The Grand Jury further charges:

                                  COUNT 3

    1.   Each of the allegations contained in paragraphs 1 through 28 of
this Indictment is realleged and incorporated herein by reference as though
fully set forth at length verbatim.

                                  - 11 -

    2.   On or about and between February 17, 1987 through February 20,
1987, defendant CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, did, in the
Western District of Kentucky at Louisville, Jefferson County, Kentucky, on a
matter within the jurisdiction of an agency of the United States, knowingly
and willfully make or use any false writing or document, knowing the same to
contain a false, fictitious or fraudulent statement, as he did submit
Asbestos Removal Notification Form to APCD, 914 East Broadway, Louisville,
Kentucky, stating the scheduled starting date for asbestos removal
notification to be February 22, 1987, and a scheduled completion date for
asbestos removal to be February 23, 1987, when the defendant CHARLES A.
DONAHOO, JR., D/B/A CHARLIE WRECKING, did know that asbestos removal work
had been started again on a dated between January 22, 1987 and February 20,
1987.

    In violation of Title 18, United States Code, Section 1001.

The Grand Jury further charges:

                                  COUNT 4

    1.   Each of the allegations contained in paragraphs 1 through 28 of
this Indictment is realleged and incorporated herein by reference as though
fully set forth at length verbatim.

    2.   On or about and between January 22, 1987 and February 20, 1987, the
exact dates being unknown to members of the Grand Jury, in the Western
District of Kentucky at Louisville, Jefferson County, Kentucky, defendant
CHARLES A. DONAHOO, JR. D/B/A CHARLIE WRECKING, operator of a stationary
source in Louisville, Kentucky,

                                  - 12 -

containing at least 260 linear feet of friable asbestos material on pipes or
160 square feet on other facility components, did knowingly demolish and
cause to be demolished this stationary source in violation of any of the
emission, design, equipment, work practice or operational standards for
asbestos and knowingly caused asbestos to be emitted from this stationary
source in violation of these standards.

    In violation of Title 42, United States Code, Section 7412(c) and (e),
and Title 42, United States Code, Section 7413(c).

The Grand Jury further charges:

                                  COUNT 5

    1.   Each of the allegations contained in paragraphs 1 through 28 of
this Indictment is realleged and incorporated herein by reference as though
fully set forth at length verbatim.

    2.   From on or about and between January 22, 1987 and February 20,
1987, the exact dates being unknown to members of the Grand Jury, defendant
CHARLES A. DONAHOO, JR., D/B/A CHARLIE WRECKING, did, being a person in
charge of a facility from which a reportable quantity of a hazardous
substance, asbestos, is released without a permit did fail to immediately
notify the appropriate agency of the United States Government of the release

                                  - 13 -

of the hazardous substance as soon as the had knowledge of such release at
831 south Twelfth Street, Louisville, Kentucky.

    In violation of Title 42, United States Code, Section 9603(b).

                                       A TRUE BILL.

                                       Illegible
                                  /s/  _________________________
                                       FOREMAN

    Illegible, for
/s/ _________________
    JOSEPH M. WHITTLE
    UNITED STATES ATTORNEY

                                  - 14 -
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