Respondent explains in its Answer that it performed the demolition of the Lowell Elementary School pursuant to contract for the Regional Airport Authority, site owner, and pursuant to directions from Coradino Group, the managers of the demolition project. Respondent argues that the Air Pollution Control District issued the permit approving demolition and represented to Respondent that the building was free of RACM, so EPA waived its right to assert the charges in the Complaint. Complainant points out additionally that the regulations at 40 C.F.R. Part 61 Subpart M have no provision for waiver. After Doerr completed its work, the owner, Doerr, Respondent and the Air Pollution Control District inspected the building and found all asbestos containing material had been removed, Respondent asserts. As a result of relying on issuance of the permit, approval by the Air Pollution Control District and the inspection, Respondent believed that all RACM had been removed from the school building and that it was free to perform the demolition without being in violation of air pollution laws.
Complainant argues that the affirmative defense is insufficient as a matter of law and redundant.
Complainant points out that, as stated in its Answer, Respondent knew of the violations when the Air Pollution Control District discovered asbestos at the site three months after demolition of the school building. Respondent argues that Respondent only received notice of one alleged violation, failure to wet the asbestos. Respondent asserts that two of the firms involved in the demolition no longer exist and a bonding firm is in receivership, and that it has been unable to obtain records of those firms. Respondent asserts that Complainant is barred from enforcing the allegations of the Complaint, because the Air Pollution Control District certified that the building is free from asbestos. The Air Pollution Control District's approval for demolition in the permit, and its memorandum report that Doerr and Associates had abated asbestos containing material from the school building, was a license and authority for Respondent to demolish and that Respondent was justified in relying on these documents.