Remember Asbestos? 

It’s a naturally occurring insulating material that was determined to be a hazardous air pollutant way back in the 20th century?  Well the initial excitement over inspections, removal and encapsulation may have worn off, but asbestos as a continuing issue for contractors, remodelers, developers and property owners is alive and well.

And if you have become complacent or been ignoring potential issues regarding asbestos, you’d be wise to refocus your efforts.    Why?  Well EPA appears to have refocused its efforts on enforcement and it resulted in some pretty serious penalties, including criminal violations.

Take a look.  In March of last year, the EPA settled a case against the United States General Services Administration (GSA) and four private parties for alleged violations of the CAA asbestos requirements at a Post Office and Court House in Boston, Mass.  The parties will pay a fine of $100,000.

This is an important case for a couple of reasons.  First, GSA was the owner of the building and was not the one responsible for the asbestos work.  Yet, the EPA still regarded them as a responsible party.  So lesson to be learned, even if you hire the work out to responsible, certified professionals, if they screw it up, your butt is on the line.  Make sure you are protected with your own counsel and advice.  Even good contractors can screw things up if you let them – don’t let them.

Second, this was not a case of GSA pulling up to Home Depot and hiring a bunch of day laborers to “rip and strip”.  This case involved actual asbestos abatement contractors.  Proving that even trained professionals can screw things up sometimes. And when it happens on your job site, you will get stuck with a huge bill.

In a second case from 2010, a small private school was hit with an asbestos management plan violation.  The school was initially subject to $12,573 in penalties, but because of actions taken by the school after the inspection, the penalty was significantly reduced.  Apparently, the school was under the impression that the buildings were asbestos free.  Data indicated that “small amounts of asbestos-containing building materials may still be found at the school.”  The school was required to implement an asbestos management plan in accordance with AHERA requirements.

Two things you can learn from this case as well.  First, be nice and work with the enforcement group.  By working to resolve the issue, instead of provoking the enforcement officer, the penalty was reduced to $3,906.   I know it’s not always easy to work with the enforcement groups, and some are more hard-headed than others, but building rapport with the inspectors and the agency is critical.  Hardball tactics rarely work and often result in the enforcement officer digging in their heels.  Hardball tactics look good on television and sound good around the poker table, but in reality, you get exponentially better (and more consistent) results by building rapport and working with the agency – even if you loath them.

Second, you need to be proactive.  If this school had been proactive, it would have realized that target issues like this come up and if they had hired an attorney to help them assess their exposure to target issues long before the EPA came knocking, they would have been in a much better position.

JAIL TIME FOR ASBESTOS

Here are 2 cases from last year that resulted in jail time for asbestos violations.

In the first case, a man was sentenced to 6 years in prison for violating CAA – removing asbestos containing materials during a hospital remodeling job without proper permits or precautions.  In the second case, two men were sentenced for criminal violations.  One of them is serving 2 years behind federal bars for knowingly violating the asbestos regulations.

Asbestos may be “old news” but EPA doesn’t treat it any less seriously than they treat other compliance issues.  Be proactive and don’t violate what are rather simple rules to understand and to follow.  The main reason these guys are behind bars is not because they are evil people, just that they don’t believe asbestos is a serious issue, so they ignore the requirements and knowingly remove and dispose of it without proper treatment and permits.

Be proactive and make sure your buildings are compliant and any contractor you use for demolition or remodeling should have its actions and paperwork thoroughly scrutinized by professionals who know what to look for.

Here are FIVE things you need to know about asbestos.

1)      Asbestos is still widely used.  Just because a building was built after 1980 doesn’t mean it can’t contain asbestos.  That’s why the requirements apply to ALL buildings.  Although certain asbestos containing products have been “banned”, there are many that are readily available such as roof coatings and roof felt, cementatious boards (shingles, flat sheets), asbestos clothing, pipeline wrap, gaskets, non-roofing coatings, and a number of automotive products – clutch facings, brake blocks, linings and pads, among others.  So asbestos is still a cause for regulatory concern and owners need to be diligent.

2)      All demolition activities are regulated by the Clean Air Act Hazardous Air Pollutants(NESHAPS) regulations.  If you are in one of the delegated counties, you’ll follow their guidelines, otherwise you’ll follow ADEQ or EPA.

3)      All renovation activities that meet specific thresholds will also trigger NESHAPS regulatory requirements.

4)      If you maintain the asbestos in place you will need a management plan – that is regulated under AHERA and OSHA.

5)      School buildings have separate regulatory requirements mandating asbestos inspections.   They are also required to have a management plan in place.  In 2006, EPA fined 4 charter schools in Phoenix for failing to have an inspection and/or management plans.

Michael Denby is the founder of Denby Law, PLLC an exclusive environmental and natural resources law firm in Phoenix, AZ focusing on regulatory compliance law for all the major environmental programs, CERLCA, RCRA, CAA, CWA, & TSCA. In his 18 years of environmental representation, Michael has written and presented on numerous environmental topics, sat on 3 gubernatorial appointments, and represented large and small clients before local, state and federal regulators. Learn more about Denby Law, PLLC or to contact the author click here www.denbylaw.com