City of St. Louis argues no standing to object to its asbestos violations

Jun 3, 2009

The City of St. Louis experimented with mass “wet” demolitions of asbestos-containing structures between 1999 and 2004. Current regulations require that asbestos-containing materials be removed from a building before the structure is demolished to avoid asbestos releases. In the “wet method,” the structure and any asbestos materials in it are wetted down during demolition rather than removing the asbestos beforehand.

Represented by the legal nonprofit organization Public Justice, a citizens’ group called Families for Asbestos Compliance, Testing and Safety (FACTS) filed suit against the City, and a federal district judge recently granted summary judgment for the citizens’ group, finding that the City of St. Louis did indeed break the law between 1999 and 2004 when it approved the mass use of “wet demolition” rather than requiring asbestos removal before buildings were demolished. Approving the “wet demolitions” was a violation of the National Emissions Standards for Hazardous Air Pollutants.

This ruling did not resolve the case, however, and the parties went to trial to decide the appropriate civil penalties and injunctive relief.

Then, after the trial was over, the City of St. Louis argued for the first time that the citizen’s group never should have been allowed to sue over the violations because the group didn’t have “standing.” Standing is a legal term used to describe the idea of having something to gain or something to lose in the litigation—in other words, having a dog in the fight.

The City says that the group doesn’t have standing because they haven’t shown that St. Louis is about to violate the law again. The City says that, in order to sue, the citizens’ group would have to show that the City was continuing to violate the law or that another violation was imminent. Because the City hasn’t used the “wet method” since 2004, there’s nothing to remedy through the lawsuit.

The citizens’ group says it has standing to sue because the Clean Air Act lets citizens sue for past violations if the violations were repeated. And the judge has already ruled that the City of St. Louis violated the law 99 times. In addition, the citizens’ group says that, when suit was filed, the City of St. Louis had threatened to resume demolitions using the “wet method” if approved by the EPA and the court; and the City has never retracted its application to EPA. Finally, the citizens’ group says that civil penalties could provide funds for evaluating and remediating asbestos contamination in public parks near wet demolition sites.

The law requires that asbestos-containing materials be removed from a structure before it is demolished to avoid releasing asbestos fibers into the air. Exposure to asbestos can cause mesothelioma, a cancer that invades the membranes surrounding the lungs, abdomen or heart.

For the full story, go to Law360.

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