United States of America v. Gearing et al

Filing 10

Order & Opinion entered by Judge Joe Billy McDade on 10/30/2015. See Order attached.(RK, ilcd)

E-FILED

Friday, 30 October, 2015 02:46:37 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONNA GEARING and LARRY
THOMASON,
Defendants.

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Case No. 15-cv-1333

ORDER & OPINION
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.
PROCEDURAL HISTORY
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.).
On the same day that the United States filed its Complaint, it also filed a
Motion for Order in Aid of Immediate Access. (Doc. 3). This motion requests relief
that is dispositive of the case. The United States specifically requests an order
granting the EPA and its representatives immediate access to the Site so they can
take additional samples and conduct necessary cleanup. (Id. at 13-14). This could
include excavating contaminated soil, disposing of hazardous substances off-site, and
demolishing the building. (Id. at 14).
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

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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.
FACTUAL BACKGROUND
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.1 It is unclear who currently
owns the property. Defendant Gearing is the owner of record, and currently lives in a
nursing facility, as she recently suffered a stroke. Defendant Thomason has asserted

The United States submitted with both its Motion and its Objections to the Report
and Recommendation declarations by Craig Thomas, EPA’s local On-Scene
Coordinator. Both declarations contain a number of photographs that show the
property described in greater detail. (See Docs. 4-3 and exhibits and 7-2, 7-3 and
exhibits).
1

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ownership without the objection of Gearing or her husband. Gearing and Thomason
entered into a contract for sale of the property on January 15, 2013, after the fire
destroyed the building, but there is no evidence that Thomason has recorded a dead
or affidavit of title. Since the fire, Thomason has done work at the Site.
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
building’s boiler room. The first three were taken from an air cell that was part of
the pile, and were 70-80 percent asbestos. The next three were taken from mag block
insulation, and were 10-20 percent asbestos. The seventh sample, taken from
insulation outside of the boiler room, tested negative for asbestos.
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.

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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 asbestoscontaining 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:
The purpose of this Action Memorandum is to request and document
your approval to expend up to $548,624 to conduct a time-critical
removal action at the former Vermont School Site (Site) located in
Vermont, Fulton County, Illinois. The proposed time-critical removal
action herein will mitigate the threats to public health, welfare, and
the environment posed by the presence of unsecured asbestos and
asbestos containing material (ACM) in waste piles located at the Site.
(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:
1) Develop and implement a Site Health and Safety Plan to include a
Perimeter Air Monitoring and Sampling Plan and develop measures
to control ACM dust during the removal and deconstruction of the
facility.

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2) Develop a site specific sampling plan, to conduct additional
characterization of the Site to determine the nature and extent of
asbestos contamination and other hazardous substances in soil to
support the removal action.
3) Excavate any soil contained with asbestos and other hazardous
substances in and around the Site that presents an unacceptable
risk to public health and the environment.
4) Transport and dispose of all characterized or identified hazardous
substances, pollutants, wastes, or contaminants that pose a
substantial threat of release at a CERCLA approved disposal facility
with appropriate permits.
5) As necessary, deconstruct the building at the Site to excavate,
recycle, load, transport, and dispose of readily identifiable ACM
wastes, debris and underlying contaminated soil. All hazardous
material will be disposed of at an EPA-approved disposal facilities
[sic] in accordance with EPA’s Off-Site Rule (40 CFR § 300.440).
6) Post-confirmation sampling will be conducted in accordance with the
site specific sampling plan to confirm efficacy of the removal actions.
7) Backfill excavated areas with clean material and topsoil. Restore
excavated and disturbed areas and vegetate to prevent soil erosion.
8) Take any other response actions to address any release or
threatened release of a hazardous substance, pollutant or
contaminant that the EPA OSC determines may pose an imminent
and substantial endangerment to the public health of the
environment.
(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.

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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
afterward, 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 budged
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.
LEGAL STANDARDS
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

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modify the recommended disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.” Id.
DISCUSSION
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.
I.

Statutory Overview
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 (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).

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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

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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).2
A court will grant the EPA access to property when four prerequisites are met.
First, the site must be a “vessel, facility, establishment, or other place or property;”

The Report and Recommendation suggests that the EPA must obtain an
administrative order in order to file a lawsuit pursuant to 42 U.S.C. § 9604(e)(5)(B).
(See Doc. 6 at 10 (“The natural reading of [§ 9604(e)(5)(A) and (e)(5)(B)] suggest[s]
that the EPA must first issue an order and, should an owner refuse to comply, the
EPA may then seek enforcement of its order with the court.”)). However, the Report
and Recommendation concluded that the United States could file a lawsuit to obtain
entry without the EPA first obtaining an administrative order pursuant to §
9604(e)(6), which provides that “[n]othing in this subsection shall preclude the
President from securing access or obtaining information in any other lawful
manner.” Id. To the extent that the Report and Recommendation suggests that §
9604(e)(5)(B) does not authorize the EPA to file a lawsuit without first obtaining an
administrative order, the Court respectfully disagrees. First, a natural reading of §
9604(e)(5)(B) is consistent with the EPA’s position that it need not obtain an
administrative order in order to file a lawsuit. The subparagraph reads that “The
President may ask the Attorney General to commence a civil action to compel
compliance with a request or order referred to in subparagraph (A).” Both
subparagraphs (A) and (B) make reference to requests. Subparagraph (A) makes it
clear that administrative orders are issued after “an officer, employee, or
representative” makes “any request . . . under paragraph (2), (3), or (4)” of §
9604(e)(5). And subparagraph (B) authorizes the United States to file a lawsuit after
either an ignored request or administrative order. To suggest, then, that the EPA
must wait to file a lawsuit until it has obtained an administrative order with which
the owner does not comply reads “request” out of § 9604(e)(5)(B). Second, the cases
that the Report and Recommendation cites for the proposition that the United States
can file a lawsuit without first obtaining an administrative order pursuant to §
9604(e)(6) but not § 9604(e)(5) do not make that distinction. Rather, the cases refer
to § 9604(e)(5), and clearly state that the EPA need not first obtain an
administrative order. See, e.g., United States v. Tarkowski, 248 F.3d 596, 599 (7th
Cir. 2001)(“Section 104(e)(5)(B)(i) provides that if consent to the entry is denied, the
government may obtain a judicial order preventing interference with the entry . . .
.”); Mountaineer Refining Co., 886 F. Supp. at 826-27 (discussing §104(e)(5) of
CERCLA, 42 U.S.C. § 9604(e)(5), and concluding that the United States may “seek
enforcement in district court of its request for entry to which consent has not been
granted . . . . It is not necessary for the United States to obtain an administrative
order as a precondition for bringing a civil action in the district court.”).
2

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second, the EPA must have “a reasonable basis to believe there may be a release or
threat of release of a hazardous substance;” third, the EPA must have requested
consent for access to the site and been unsuccessful; and fourth, the EPA must seek
entry to perform actions covered by the statute. 42 U.S.C. § 9604(e). The Report and
Recommendation acknowledges that the Site is the type of site covered by §
9404(e)(3), that the EPA has a reasonable basis to believe there may be a release or
threat of release of a hazardous substance, and that the EPA sought and was denied
consent for access. (Doc. 6 at 14, n. 2).3 At issue here is whether the EPA has met the
fourth prerequisite: that it seeks access to perform actions covered by the statute. In
that regard, the Report and Recommendation views the asbestos concerns to be
limited to the two piles of debris, and questions whether such a limited amount of
asbestos is out of proportion to the extensive remedial action proposed by the EPA.
See Tarkowski, 248 F.3d 596.
II.

Judicial Review of Requests for Access for Removal
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, 248 F.3d 596, the Seventh Circuit considered the sort of
showing the EPA must make in order to obtain access to property for the purpose of
Asbestos is a hazardous substance pursuant to 42 U.S.C. § 9601(14). See also 40
C.F.R. § 302.4. And it is easy for the EPA to establish that it has a reasonable basis
for believing asbestos is or could be released, as “there is nothing in section 104(e)(1)
[of CERCLA] about magnitude.” Tarkowski, 248 F.3d at 599.
3

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further testing and remediation without first obtaining an administrative order. In
such circumstances, a court must consider “whether the measures proposed [by the
EPA] are a reasonable basis for authorizing what would otherwise be a trespass.” Id.
at 601-02.
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 §

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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.

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III.

Applying Tarkowski

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.
A. The EPA’s Evidence of Contamination
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.).

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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 selfcleanup. 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

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of asbestos in that material is substantial. The Illinois EPA took representative
samples that tested positive for asbestos from two areas of debris; the first is a 96
cubic feet pile in the boiler room, and the second is 1,800 square feet in the building’s
basement throughout which 9” x 9” floor tiles are intermingled with other debris.
The United States asserts that these debris piles constitute substantial amounts of
asbestos containing material. As a point of comparison, it points to the National
Emission Standards for Hazardous Air Pollutants (“NESHAP”) for asbestos
regulations. The NESHAP regulations apply when an owner or operator of a piece of
property wishes to conduct certain demolition or renovation activities. 40 C.F.R. §
61.145(a). In circumstances in which there are at least 160 square feet or 35 cubic
feet of regulated asbestos-containing material, owners and operators of property
must follow particular procedures with respect to notification and emission control.
See id. As the Seventh Circuit has explained, the NESHAP procedures for friable
asbestos apply because dry and friable asbestos pose “a particular danger . . .
because it can easily become airborne.” United States v. B&W Inv. Props., 38 F.3d
362, 364 n. 3 (7th Cir. 1994). Here, the known quantities of asbestos containing
materials are many times the amount of those that trigger requirements imposed by
the NESHAP regulations.
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

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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.4 See Tarkowski, 248 F.3d at 600 (requiring that the United States provide a
“rational basis for believing there is any danger to the environment that would
warrant” remedial action). Unlike in Tarkowski, where “there was no indication

The EPA must consider a number of factors in determining the appropriateness of
a removal action, see 40 C.F.R. § 300.415(b)(2)(i)-(viii), which it did in the Action
Memorandum in this case. (See Doc. 4-5 at 7-9).
4

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that [trace amounts of contaminants] exceeded the levels of these contaminants
found in surrounding properties none of which was deemed to pose any kind of
environmental hazard or to require or justify remedial efforts,” here the EPA has
provided considerably more evidence of contamination at the Site and has also
expressed a rationale for why it believes that the site poses a public health danger.
See 248 F.3d at 598. This basis, expressed in an approved Action Memorandum,
sufficiently establishes the magnitude of the harm necessary to approve a removal
action. See U.S. v. W.R. Grace & Co., 429 F.3d 1224, 1234 (9th Cir. 2005) (concluding
that “carefully documented reasoning” in EPA action memoranda can provide a basis
for a removal action that is not arbitrary and capricious.).
B. The EPA’s proposed remedial plan
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

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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

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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 bearing on the EPA’s stated purpose for
seeking access to the Site.
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

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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.
CONCLUSION
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).

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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 period of nine months from the date of this Order.
2. The EPA is allowed access for the following activities:
a. developing a Site-specific sampling plan to conduct additional
characterization of the Site and determine the extent of asbestos, lead,
mercury, and other hazardous substances;
b. developing and implementing a Site Health and Safety Plan, including
a Perimeter Air Monitoring and Sampling Plan and developing
measures to control ACM dust, lead, mercury, and other hazardous
substances present at the Site;
c. performing a removal action of hazardous substances, including
excavating contaminated soil, transporting and disposing of all
identified hazardous substances which pose a substantial threat of
release off-Site, demolishing the building at the Site as necessary to
identify hazardous substances or remove hazardous substances,
excavating, recycling, loading, transporting, and disposing of hazardous
substances, debris, and underlying soil;
d. conducting post-confirmation sampling to confirm the efficacy of the
removal actions; backfilling excavated areas with clean material and
topsoil; restoring excavated and disturbed areas; and vegetating as
necessary in an attempt to prevent soil erosion; and
e. performing any other activities necessary to identify hazardous
substances at the Site and remove those hazardous substances or
otherwise redress the threat posed by those hazardous substances.
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.

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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.

Entered this 30th day of October, 2015.

s/Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge

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