Asbestos: A Legal Primer for air force installation attorneys

[Lieutenant Colonel James V. Cannizzo]{.smallcaps}[^1]

#### I. INTRODUCTION

At virtually all military installations, asbestos will sooner or later
create environmental, safety and legal issues. In years past, asbestos
was so widely used in construction materials that it is presumed present
in structures built prior to 1980.[^2] The statutes and regulations that
today address the potential hazards of asbestos are part of a complex,
piecemeal and overlapping scheme to control toxic substances in general.
The purpose of this article is to provide a basic familiarization with
asbestos, highlight relevant statutory and regulatory provisions,
illustrate their application to asbestos remediation, discuss the degree
to which federal facility operators are subject to potential civil and
criminal liability, and suggest ways in which proactive stances may be
taken to preclude any such liabilities.

#### 

#### II. ASBESTOS

Asbestos is a naturally occurring silicate mineral fiber, the most
common type of which is white; others are blue, gray or brown.[^3] The
different types include chrysotile, amosite, crocidolite, tremolite,
anthophyllite and actinolite. Chrysotile is the most common type of
asbestos, and makes up approximately 90%-95% of all asbestos contained
in U.S. buildings.[^4]

Asbestos is resistant to heat, corrosion, and friction, and has a high
tensile strength and stiffness.[^5] These properties make it a seemingly
superb insulating and construction material. Hence, asbestos is commonly
found in wallboard, panels, ceiling tile,[^6] floor tiles, roofing
material (e.g., felt, flashing and paint), cement-asbestos siding and
piping, fire doors, elevators, brake shoes, gaskets, mastic, caulk,
paint and laboratory equipment (e.g., hoods, oven gaskets, gloves and
bench tops).[^7]

When locked into a surrounding matrix where the asbestos fibers are not
capable of becoming airborne, asbestos is said to be "nonfriable."[^8]
Alternatively, asbestos is "friable" when its matrix is sufficiently
degraded that it can be crumbled to a powder with hand pressure, thereby
causing a potential release of asbestos fibers into the air.[^9]
Asbestos is hazardous when its fibrous particles become airborne,
creating the possibility that they may be inhaled or ingested.[^10]
Exposure to very high levels of airborne asbestos has been linked to
asbestosis, characterized by scarring of the lungs; mesothelioma,
characterized by cancer of lungs, chest and abdominal cavity lining; as
well as lung and gastrointestinal cancers.[^11] Illness typically occurs
15-40 years following exposure.[^12]

Microscopic asbestos fibers can be made airborne through any number of
activities relating to asbestos containing material (ACM).[^13] Asbestos
fibers may become airborne through "contact," "reentrainment" or
"fallout." Contact includes striking, cutting and drilling ACM.[^14]
Reentrainment refers to the sweeping, dusting or unfiltered vacuuming of
asbestos dusts.[^15] Fallout refers to old and deteriorated asbestos
fibers becoming airborne due to damage or destruction of the bonding
agent used to hold the ACM together.[^16]

The simple presence of ACM in a structure does not necessarily require
its abatement or active management. Schools are an exception, where more
extraordinary effort may be required to prevent any exposure to
children.[^17] Generally, abatement is only mandated where there is a
threat to human health, usually in the form of potential exposure to
airborne asbestos.[^18]

Threats to human health can frequently be found in building demolition
and renovation because such activities often result in ACM contact and
reentrainment.[^19] Additionally, maintenance workers such as civil
engineers, craftsmen and custodians are at risk of potential exposure
from fallout because their work routinely puts them in places such as
boiler and machinery rooms where asbestos is frequently present in old
insulating materials and machine parts.[^20] Hence, these personnel must
be trained in the recognition and proper handling of friable
asbestos.[^21]

#### 

#### III. APPLICABLE STATUTES AND REGULATIONS

The primary legal authority governing toxic substances generally is the
Toxic Substances Control Act (TSCA),[^22] enacted by Congress to give
the U.S. Environmental Protection Agency (EPA) the ability to track the
75,000 industrial chemicals currently produced in the United States or
imported from other countries.[^23] Although TSCA does address
asbestos,[^24] in practice, regulations issued pursuant to the
Occupational Safety and Health Act (OSHA)[^25] and the Clean Air Act
(CAA)[^26] play a larger role in controlling asbestos remediation
issues. Accordingly, this article will next examine the OSHA and the
CAA, with other applicable statutes and regulations to follow.

#### Occupational Safety and Health Act[^27]

While the Occupational Safety and Health Act does not contain specific
provisions on asbestos, it provides the Occupational Safety and Health
Administration the authority to issue regulations for workplace
safety.[^28] In the asbestos arena, the most important OSHA regulation
incorporates a Construction Standard for Asbestos.[^29] It applies to
individuals involved in construction, renovation and demolition
activities. It establishes a permissible exposure limit (PEL) of 0.1
fibers per cubic centimeter of air (f/cc) as an eight-hour time-weighted
average and an excursion level of 1.0 f/cc averaged over a sampling
period of 30 minutes.[^30] It also establishes engineering controls[^31]
and personal protective equipment requirements for individuals involved
in asbestos-related work, and outlines requirements for medical
surveillance and record keeping.

The other OSHA regulation that bears close scrutiny is the General
Industry Standard for Asbestos.[^32] It establishes the same PEL and
excursion limit as outlined in the Construction Standard. The scope of
the General Industry Standard applies to all occupational exposures to
asbestos not specified in the Construction Standard.[^33] For example,
it would apply to custodians who perform equipment maintenance in areas
where ACM is present or to vehicle maintenance workers who work with
brakes that contain ACM.[^34]

Notably, OSHA does not directly apply to federal facilities. Its
provisions, however, have been made applicable via a mandate in
Executive Order (EO) 12,196, directing that all federal agencies have
occupational safety programs.[^35] Unless alternative standards have
been approved by the Secretary of Labor, these programs must abide by
OSHA standards.

The Air Force has implemented EO 12,196 through Air Force Instruction
(AFI) 91-301, *Air Force Occupational and Environmental Safety, Fire
Protection, and Health (AFOSH) Program*[^36] and AFOSH Standard 48-8,
*Controlling Exposures To Hazardous Materials.*[^37] Attachment 9 to
AFOSH Standard 48-8 specifically covers Occupational Exposure to
Asbestos.

Another key Air Force asbestos regulation is AFI 32-1052, *Air Force
Facility Asbestos Management,* requiring bases to conduct facility
asbestos surveys and develop Asbestos Management and Operating
Plans.[^38] Other relevant Air Force instructions include, AFI 32-7040,
*Air Quality Compliance*,[^39] AFI 32-7066, *Environmental Baseline
Surveys in Real Estate Transactions*[^40] and AFI 48-119, *Medical
Service Environmental Quality Programs.*[^41]

**B. The Clean Air Act**[^42]

In 1970, the Clean Air Act (CAA) authorized EPA to identify hazardous
air pollutants and establish risk-based National Emission Standards for
Hazardous Air Pollutants (NESHAPs) for new and existing sources.[^43]
The following year, EPA identified asbestos as a hazardous pollutant;
and in 1973, promulgated the Asbestos NESHAP.[^44] Virtually all states
have been delegated authority to administer the federal asbestos NESHAP
program, though EPA still retains program oversight authority.[^45]

The asbestos NESHAP establishes standards for renovation or demolition
activities where certain threshhold quantities of regulated
asbestos-containing materials (RACM)[^46] are present.[^47] The
standards minimize the release of asbestos fibers through specified work
practices to be followed in the processing, handling and disposal of
ACM.[^48] Additionally, the regulations require the owner of the
building or the contractor to notify applicable state and local agencies
or EPA regional offices before all demolition or renovation of buildings
that contain a certain threshold amount of asbestos.[^49]

C. The Toxic Substances Control Act[^50]

In relation to asbestos, TSCA and its implementing regulations are
primarily concerned with schools: the identification of ACM in schools,
school response actions to ACM once discovered, and the training and
accreditation of those who conduct school abatement actions.[^51] More
recently, TSCA's training and accreditation provisions have been
extended to certain work performed in public and commercial buildings
(i.e., non-school buildings).[^52]

*1. Toxic Substance Control Act and Schools*

Under the authority of TSCA, EPA issued the "Asbestos-in-Schools Rule"
in May, 1982. This was the very first regulation to mandate control of
asbestos, and it applied only to schools.

A more comprehensive law, the Asbestos Hazard Emergency Response Act
(AHERA), was passed in 1986.[^53] It, too, primarily applies to schools,
including Department of Defense elementary and secondary schools. AHERA
does not apply to training schools for military or civilian
personnel.[^54] AHERA requires local education agencies to inspect their
schools for asbestos containing building materials and prepare
management plans that recommend the best way to reduce the asbestos
hazard.[^55] Options include repairing damaged ACM, spraying it with
sealants, enclosing it, removing it or keeping it in good condition so
that it does not release fibers.[^56]

AHERA's implementing regulations are found in 40 C.F.R. Part 763,
Subpart E. They spell out a framework for inspection, sampling,
analysis, assessment, hazard response, operations and maintenance,
training, planning and record keeping for asbestos in schools.

*2. Toxic Substances Control Act and Public/Commercial Buildings*

The Asbestos School Hazard Abatement Reauthorization Act amended TSCA
and required EPA to revise its asbestos model accreditation plan under
AHERA to extend training and accreditation requirements to include
persons performing certain asbestos related work in public and
commercial buildings.[^57] It also increased the minimum number of
training hours required for accreditation.[^58] These newer requirements
are found in regulations at Appendix C to Subpart E of 40 C.F.R. Part
763.[^59] Therefore, even though the basic regulation applies only to
schools, the training and accreditation requirements outlined in
Appendix C apply to anyone performing abatement, supervision,
inspection, management planning or project design in public or
commercial buildings.[^60]

For purposes of Appendix C, the phrase "public or commercial building"
means the interior space of any building that is not a school building,
except that the term does not include any residential apartment
buildings of fewer than ten units or detached single-family homes.[^61]
The term includes, but is not limited to, industrial and office
buildings, residential apartment buildings and condominiums of ten or
more dwelling units, government-owned buildings, colleges, museums,
airports, hospitals, churches, preschools, stores, warehouses and
factories.[^62] Interior space includes exterior hallways connecting
buildings, porticos and mechanical systems used to condition interior
space.[^63]

D.  **Comprehensive Environmental Response,**

> **Compensation and Liability Act**[^64]

Pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), EPA is required to establish a list of hazardous
substances and release quantities that, if exceeded, must be reported to
the National Response Center.[^65] Asbestos is listed as a hazardous
substance with a reportable quantity of one pound; however, this
designation applies only to friable asbestos.[^66] Thus, if someone
spills one pound of friable asbestos outside of a building or contained
area or container, the spill must be reported to the National Response
Center within 24 hours.[^67]

CERCLA requires federal facilities leasing or transferring ownership of
property to disclose information about the release, disposal or
existence of asbestos at the property.[^68] A notice for storage applies
only when asbestos is stored in quantities greater than or equal to 1000
kilograms or the reportable quantity has been met under CERCLA,
whichever is greater. [^69] CERCLA reportable quantities for material
such as asbestos are found in the tables at 40 C.F.R. § 302.4.

**E. Emergency Planning and Community Right-to-Know Act**[^70]

The Emergency Planning and Community Right-to-Know Act (EPCRA) requires
several different types of asbestos reporting. Section 313 necessitates
reporting manufacture, use or possession of friable asbestos for annual
Toxic Chemical Release Inventory Reporting.[^71] Although federal
agencies are not statutorily required to comply with EPCRA, they are
required to by virtue of EO 13,148.[^72]

**F. Safe Drinking Water Act**[^73]

The Safe Drinking Water Act (SDWA) addresses asbestos in that, under
SDWA authority to regulate drinking water contaminants, EPA has issued a
maximum contaminant level for asbestos.[^74]

**G. Resource Conservation and Recovery Act**[^75]

The Resource Conservation and Recovery Act (RCRA) imposes requirements
for hazardous waste handling. Although asbestos is not a listed
hazardous waste, it may be deemed one under RCRA as a widely recognized
severe human health risk.[^76] Thus, RCRA's hazardous waste disposal
provisions may be applied to asbestos disposal.

#### H. The Federal Wage System: Pay Entitlement for Wage-Grade Employees Exposed to Airborne Asbestos[^77]

As a part of the Federal Wage System, Congress has authorized
Environmental Differential Pay (EDP) as additional pay for government
wage-grade employees subject to unusually severe working conditions or
hazards.[^78] Congress tasked the Office of Personnel Management (OPM)
with determining the particular conditions or hazards for which EDP may
be paid. Accordingly, OPM has defined a multitude of such
situations.[^79] They fall into two categories: those payable for a
hazard *per se* and those payable only if the hazard has not been
"practically eliminated."[^80] EDP is authorized for exposure to
airborne concentrations of asbestos. Asbestos EDP is payable only in the
event such exposure has not been "practically eliminated"[^81] through
the use of, for example, personal protective equipment.

The Federal Labor Relations Authority (FLRA) recognizes and consistently
follows the holding by the United States Court of Appeals for the
Federal Circuit in *O'Neall v. United States*, 797 F.2d 1576 (Fed. Cir.
1986). The *O'Neall* Court determined that a condition precedent of
asbestos EDP entitlement is the establishment of a quantitative level of
airborne asbestos concentrations, the exceedence of which would indicate
a failure to have "practically eliminated" the hazard, thus warranting
payment of EDP.[^82] Until very recently, however, there has been no
federal-wide standard for this threshold quantitative level.[^83]

Setting the threshold quantitative level has historically been a matter
for individual agencies to determine, subject to negotiation if there
was a union that desired it. Arbitration sometimes served as a method of
determination--but only as a means of last resort. The FLRA has said,
"'\[i\]n the absence of a mandated quantitative level set by applicable
law or regulation or otherwise agreed to by the parties,' the arbitrator
is free to determine the quantitative level of exposure for the payment
of EDP."[^84]

With passage of the National Defense Authorization Act (NDAA) of
2004,[^85] the threshold quantitative level became set by applicable
law. It is no longer subject to determination by unilateral agency
action, collective bargaining, or arbitration. In section 1122(a) of the
NDAA of 2004, Congress adopted as the threshold quantitative level the
asbestos PEL promulgated pursuant to the OSHA. Hence, the OSHA PEL for
asbestos is now the federal-wide quantitative threshold for the payment
of asbestos EDP.[^86]

> In the event an installation receives a union grievance seeking
> payment of asbestos EDP, they should contact the Air Force Legal
> Services Agency's Central Labor Law Office (AFLSA/CLLO) immediately.
> These cases can quickly mushroom into class action cases and require
> headquarters oversight at the earliest opportunity.

#### I. Miscellaneous Statutory and Regulatory Provisions

Individual state laws containing versions of the above federal
provisions also may apply to federal facilities.[^87] States can issue
standards that are more stringent than federal standards.[^88]

Also worth mentioning, the Department of Transportation has promulgated
49 C.F.R. Chapter 1, establishing labeling, packaging and transportation
requirements for ACM.[^89]

#### 

#### IV. STATUTORY & REGULATORY APPLICATION TO ASBESTOS REMEDIATION

####  

#### A. Covered Structures

The definition of "facility" under EPA's NESHAP rule is quite broad.
Office, industrial, residential structures and even ships are
"facilities," whether public or private.[^90] Residential buildings
which have four or fewer dwelling units are not considered
\"facilities\" unless they are part of a larger installation. For
example, a military base, company housing, an apartment or housing
complex are qualified facilities. [^91]

B. Asbestos Threshold Levels Triggering NESHAP Work Practice Standards
for Demolition and Renovation Projects

Asbestos NESHAP regulations must be followed for all demolition and
renovation of facilities having at least 80 linear meters (260 linear
feet) of RACM on pipes or 15 square meters (160 square feet) of RACM on
other facility components. NESHAP regulations also apply where at least
1 cubic meter (35 cubic feet) of RACM is removed from facility
components where the length or area could not be previously
measured.[^92] These amounts are known as \"threshold\" amounts.[^93]
All demolition and renovation is subject to the Asbestos NESHAP insofar
as owners and operators must determine if, and how much asbestos is
present at the site.[^94]

## C. Notification of Renovation or Demolition

Notification is a written notice of intent to renovate or demolish. For
all demolitions, notification must be given to the appropriate
regulatory agency, even in the absence of any known asbestos at the
site.[^95] For renovations, the notice requirements apply if the
quantitative amounts of RACM mentioned in subsection B above are met.

The owner or operator makes required notifications to the delegated
state or local pollution control agency in the area or the EPA regional
office, depending on what authority has been delegated.[^96] Some EPA
regions require that both the EPA regional office and the local agency
be notified, while some require notice only to the delegated state or
local agency.[^97] If the program is not delegated, notification should
be made to the EPA regional office. The EPA Asbestos NESHAP regulation
requires ten working days' advance notice. Most state regulations have
identical advance notice provisions.[^98]

Substantively, notifications must contain certain specified information,
including but not limited to, scheduled start and completion dates,
location of the site, names of operators or asbestos removal
contractors, methods of removal, amount of asbestos and whether the
operation is a demolition or renovation.[^99]

######## D. Required Training and Certifications

### Applicable training and certification requirements depend upon the type of asbestos work being performed. There are four classes of asbestos work.[^100] Class I work includes removal of thermal system insulation (like pipe insulation and tank insulation) and asbestos surface coatings (like fireproofing and popcorn ceilings). OSHA training and certification requirements apply to all employees who remove insulation or surfacing asbestos. Asbestos workers require 32 hours of initial training with 8 hours' annual refresher training. This training must be consistent with the EPA Model Accreditation Plan (MAP). Asbestos supervisors require 40 hours of initial training with 8 hours of annual refresher training. At least one person on the project must be certified as an asbestos supervisor.[^101] 

### Class II work involves removal of other types of asbestos material such as flooring, roofing and transite. There are regulatory requirements for training and certification of all employees who remove asbestos flooring, roofing, ceiling tiles, transite, gaskets or other asbestos containing materials that are not thermal insulation or surfacing materials. For instance, eight hours of training is required in the specific asbestos material that the employee will be removing (i.e., roofing or flooring). Employees also need an annual eight-hour refresher class. If more than one kind of Class II material is to be abated in an asbestos project, a certified worker or supervisor must perform the work.[^102] 

Class III work involves repair and maintenance activities that might
disturb asbestos materials. For example, replacement of a steam pipe
fitting might mean disturbance of the asbestos containing insulation
covering the fitting. All situations involving Class III work must be
abated by Class I or Class II trained personnel prior to the project.
Class III training must be consistent with EPA MAP requirements and
include at least 16 hours of \"hands-on\" training. [^103]

Class IV work includes maintenance, housekeeping and custodial
activities in areas that contact, but do not disturb ACM. As defined by
OSHA, it includes cleanup of dust, waste and debris from Class I, II or
III work. A two-hour training session is required that must be
consistent with EPA requirements for training of local education agency
maintenance and custodial staff.[^104]

#### E. Required Physical Measures for Handling RACM[^105]

#### The presence of asbestos in a building does not mean certain danger. As long as ACM stays in good condition, exposure is unlikely. Non-friable asbestos that poses no immediate threat of release need not be removed.

*1. Non-Friable Asbestos*

As earlier mentioned, the presence of asbestos in a building does not
mean certain danger. As long as ACM stays in good condition, exposure is
unlikely. Non-friable asbestos that poses no immediate threat of release
generally need not be removed.

*2. Friable Asbestos*

If it is necessary to abate the ACM, there are three approaches:
removal, encapsulation and enclosure.[^106] The type of asbestos and the
potential danger involved must be determined before deciding which of
these methods to use.[^107] Removal includes, *inter alia*, \"the taking
out or the stripping of substantially all ACBM \[asbestos-containing
building material\] from a damaged area.\"[^108] Encapsulation is \"the
treatment of ACBM with a material that surrounds or embeds asbestos
fibers in an adhesive matrix to prevent the release of fibers, as the
encapsulant creates a membrane over the surface . . . or penetrates the
material and binds its components together.\"[^109] Enclosure involves
setting \"an airtight, impermeable, permanent barrier around ACBM to
prevent the release of asbestos fibers into the air.\"[^110]

Any actual handling of RACM must be undertaken by trained and certified
workers. During most asbestos work, respirators and high-efficiency
particulate air (HEPA) filters must be used to abate airborne asbestos
fibers.[^111] Additional personal protective equipment, such as a hood,
gloves and full body suit may also be necessary.[^112]

*3. Requirement for ACM Removal Prior to*

*Demolition or Renovation Activities*

Although asbestos may be in a non-friable state, demolition and
renovation activities present the possibility of applying something more
than mere hand pressure to ACM with a resulting discharge of asbestos
fibers into the air. Even if ACM is not damaged during the course of
demolition or renovation, such activities are likely to result in ACM
waste, and all asbestos waste must be appropriately handled.

For these reasons, all RACM must be removed from a facility being
demolished or renovated before any disruptive activity begins. The RACM
must be kept adequately wet[^113] to prevent fiber release before,
during and after removal operations. Finally, demolition and renovation
activities must be conducted in a manner producing no visible emissions
to the outside air.[^114]

F. Air Force Oversight Over Contract Abatement Operations

Though much ACM remediation on Air Force installations is done by
contractors, this does not mean the Air Force has no responsibility or
potential liability. From a contractual point of view, it is important
both to manage and oversee work to ensure it is properly done and to
have contract safeguards concerning compliance and indemnification.

Air Force contracts, however, often make the contractor responsible for
occupational health and safety. These contracts usually contain the
standard Federal Acquisition Regulation (FAR) clause stating that the
contractor shall comply with 29 C.F.R. §§ 1926 and 1910 on OSHA
workplace safety. The FAR also requires that contractors include similar
clauses in any subcontracts.[^115] In such cases, the Base Environmental
Engineer (BEE) does not fulfill his normal function.[^116] While the BEE
and base safety personnel do not normally monitor contractor employees
because of the potential environmental liability if RACM is disposed of
improperly, the quality assurance personnel monitoring the contract
should still be vigilant.[^117]

## G. Required Workplace Record Keeping

*1. Workplace Monitoring -- Airborne Asbestos Levels*

The employer must keep an accurate record of all measurements taken to
monitor employee exposure to asbestos. This record includes: 1) the date
of measurement; 2) operation involving exposure; 3) sampling and
analytical methods used, as well as evidence of their accuracy; 4)
number, duration and results of samples taken; 5) type of respiratory
protective devices worn by workers; 6) name and social security number
of each worker; and 7) the results of all employee exposure
measurements.[^118] This record must be kept for 30 years.[^119]

In both general industry and construction, worker exposure must be
limited to 0.2 fibers per cubic centimeter of air (0.2 f/cc), averaged
over an eight-hour work shift.[^120] The excursion or short-term limit
is one fiber per cubic centimeter of air (1 f/cc) averaged over a
sampling period of 30 minutes.[^121] In general industry, employers must
conduct initial monitoring for workers who may be exposed above 0.1
f/cc.[^122] Subsequent monitoring must be conducted at reasonable
intervals, but in no case longer than six months for employees exposed
above the action level.[^123] In construction, daily monitoring must be
continued until exposure drops below the action level (0.1 f/cc).[^124]
Daily monitoring is not required where employees are using supplied-air
respirators operated in the positive pressure mode.[^125]

*2. Medical Examinations*

In general industry, personnel assigned to positions involving exposure
to airborne concentrations of asbestos at or above the action level or
the excursion level must have a preplacement physical examination.[^126]
The physical examination must include a chest X-ray, medical and work
history, and pulmonary function tests.[^127] Subsequent exams must be
given annually and upon termination of employment, though chest X-rays
are required annually only for older workers whose first asbestos
exposure occurred more than 10 years ago.[^128] In construction,
examinations must be made available annually for workers exposed above
the action level or excursion limit for 30 or more days per year, or who
are required to wear negative pressure respirators.[^129] Chest X-rays
for construction workers are given at the discretion of a
physician.[^130]

#### H. Waste Disposal Requirements

*1. Physical Requirements*

Asbestos must be properly bagged in double-seal containers with
pre-printed asbestos warning labels. ACM waste must be disposed of at a
landfill approved for asbestos.[^131] ACM waste that is not bagged must
be kept adequately wet.[^132] ACM waste in the context of demolition and
renovation includes RACM waste and materials contaminated with asbestos,
including disposable equipment and clothing.[^133]

*2. Record Keeping Requirement---and Waste Shipment Record*

When ACM waste is transported off-site, the owner or operator of a
source whose activities produce the waste, the waste generator,[^134]
must provide the waste site transporter, operator or owner with a waste
shipment record (WSR).[^135] The original should be turned over to the
transporter along with the waste shipment, although the generator should
retain a copy signed by the transporter acknowledging receipt of the
waste shipment for record keeping.[^136]

The owner or operator of the waste disposal site must send a signed copy
of the WSR back to the waste generator within 30 days and attempt to
reconcile any discrepancy between the quantity of waste listed on the
WSR and the actual amount of waste received.[^137] If, within 15 days of
receiving the waste, the waste site owner or operator cannot reconcile
the discrepancy, the problem must be reported to the same agency that
was notified of the demolition or renovation.[^138]

A waste generator must retain copies of all WSRs, including WSRs signed
by the owner or operator of the waste disposal site where the waste was
deposited, for at least two years.[^139] The WSRs should be kept in
chronological order in a secure, water-tight file.[^140] Entities are
expected to provide copies of WSRs upon request of the responsible
agency and to make the WSR file available for inspection during normal
business hours.[^141]

#### Transferring Properties with ACM to Parties Outside of

#### the Department of Defense

Prior to property disposal, all available information on the existence,
extent and condition of ACM shall be incorporated into the Environmental
Baseline Survey or other appropriate document to be provided to the
transferee.[^142] Department of Defense (DoD) policy is that "unless it
is determined by competent authority that the ACM in the property does
pose a threat to human health at the time of transfer, all property
containing ACM will be conveyed, leased, or otherwise disposed of 'as
is' through the Base Realignment and Closure (BRAC) process."[^143]

Under certain circumstances, property can be transferred even with ACM
that poses a threat to human health. Removal or abatement is not
required if the building is scheduled for demolition by a transferee,
occupation of the building is prohibited prior to demolition and the
transferee accepts responsibility.[^144]

#### 

#### V. CIVIL ENFORCEMENT ISSUES

#### A. Sovereign Immunity

Most major environmental statutes allow EPA to delegate permitting,
oversight and enforcement responsibilities to the states. This ensures
national consistency of minimum standards while providing flexibility to
the states in implementing rules. Under this arrangement, known as
"cooperative federalism," the federal government establishes statutory
minimum standards and procedural requirements, and states develop
implementation and enforcement programs subject to federal approval and
oversight.[^145] Ultimately, under this system, either a state or EPA
may seek to take enforcement action for an alleged rule violation.

Before a state may take enforcement action against a federal entity,
there must be a specific waiver of sovereign immunity permitting such
action. Starting in the early 1970\'s, Congress began including waivers
of sovereign immunity in federal pollution abatement statutes as it
created statutory programs delegating significant standard setting,
regulatory and enforcement powers to the states.

When faced with a state enforcement action, one should always closely
scrutinize the issue of sovereign immunity. Sovereign immunity waivers
must clearly and unequivocally permit the action the state seeks to
take. Hence, even if there is a waiver of sovereign immunity for some
purposes, it may not cover the specific action at issue. This is
particularly true in the area of financial penalties.[^146]

Unlike the states, it would appear that EPA faces no such sovereign
immunity hurdles in seeking to take enforcement action against federal
agencies.[^147] For example, as discussed in a 1997 Department of
Justice opinion concerning the CAA, there is a "clear statement" in the
CAA provisions and legislative history to provide the EPA authority to
levy punitive penalties against federal agencies.[^148]

## B. Enforcement Actions Under the Toxic Substances Control Act 

While TSCA waives sovereign immunity for requirements and fines against
federal facilities for lead-based paint,[^149] it does not do so for
asbestos or other toxic substances. Without the waiver of federal
sovereign immunity, state laws or regulations promulgated wholly under
their TSCA authority do not apply to federal facilities.

####### Enforcement Action Under the Occupational

####### Safety and Health Act 

As mentioned earlier, OSHA does not directly apply to federal agencies
because there is no section in the statute directing application to
federal facilities. However, OSHA applies through EO 12,196.[^150] This
executive order implements the statute by imposing a duty on the
Department of Labor to assist federal agencies in developing
occupational safety and health programs.[^151]

While OSHA inspectors can inspect DoD workplaces with functions
comparable to those in private industry,[^152] there is no authority for
OSHA inspection of military personnel or "uniquely military equipment,
systems, or operations."[^153] This includes operation of aircraft,
ships, missiles and radar sites.

When an OSHA inspector finds a violation in areas they do inspect, an
enforcement action cannot be issued. Instead, the inspector "promptly
issues a report to the head of the agency."[^154] The report shall
describe the nature of the findings and may make recommendations for
correcting the violation."[^155] OSHA can inspect DoD contractors with
full enforcement powers.[^156]

D. Enforcement Action Under the Clean Air Act

States can also regulate asbestos under the CAA, and depending on the
jurisdiction, may be able to assess punitive penalties. Courts have
taken varying views on the waiver of sovereign immunity in the CAA. In
the 9^th^ and 6^th^ Circuits, CAA fines are payable.[^157] In the 11^th^
Circuit, Air Force policy is to resist fines.[^158] Depending on
case-by-case analysis, fines may be payable in other circuits.[^159]
Hence, in many states the environmental regulators may have an
enforcement vehicle for levying penalties for asbestos violations.

E. Enforcement Action Under the

Resource Conservation and Recovery Act

Another enforcement tool that may be available, depending on the facts
surrounding the violation, is RCRA. The Federal Facilities Compliance
Act of 1992 waived sovereign immunity for punitive fines for RCRA solid
and hazardous waste violations.[^160] Hence, there is full authority for
regulation and enforcement as long as the asbestos in question is a
solid or hazardous waste.[^161] However, asbestos is not a listed
hazardous waste, and is much more likely to be regulated under the CAA
Asbestos NESHAP, TSCA or OSHA.

#### 

#### VI. CRIMINAL LIABILITY

The late 1990s saw a large increase in the number of criminal
prosecutions for asbestos violations.[^162] Individual government
employees should be mindful that they may be subject to such
prosecution.[^163] They are not normally protected by whatever degree of
sovereign immunity the federal government may possess, and may even have
to provide for their own defense if the prosecution is federal or if it
is determined they acted outside their scope of employment.[^164]

While TSCA establishes criminal penalties for asbestos abatement
violations,[^165] as a matter of practice, most criminal prosecutions
for asbestos violations are charged under the CAA. Alternatively, as
discussed in Section IIIG above, asbestos may be covered under
RCRA.[^166] Also, in the event asbestos debris is discharged into United
States waters, a criminal prosecution under the Clean Water Act may
arise.[^167]

#### A. Required Mens Rea

Like most environmental crimes, the prosecution does not have to prove
knowledge of the proscriptive statute or regulation, but merely that the
pollutant involved was prohibited. For example, in *United States v.
Weintraub*, intent was satisfied by knowledge of the presence of
asbestos rather than the particular type of asbestos to which
work-practice standards applied. [^168] In *United States v. Buckley*,
intent required for crimes relating to asbestos emissions and failure to
notify authorities was established simply by knowledge of the prohibited
acts, not of the statutes or health hazards. [^169] Finally, in *U.S. v.
Dipentino*, a debris pile of ACM left by the defendant was sufficient to
sustain a CAA conviction where the defendant had knowledge that the
debris contained ACM).[^170]

**B. Supervisory Liability:** ***U. S. v. Pearson***[^171]

Thomas Pearson was convicted of CAA violations.[^172] In 1995, Pearson
was employed by a Navy contractor as a certified asbestos supervisor to
remove asbestos from the central heating plant at the Whidbey Island
Naval Air Station. Under CAA regulations, asbestos must be wetted before
removal.[^173] Contrary to this requirement, Pearson's removal site had
dry asbestos \"all over the place,\" air circulation machines were
clogged and bags of asbestos were outside the containment area.[^174]

Pearson was charged with two counts of knowingly causing asbestos
removal in violation of the CAA.[^175] Pearson argued that he was not
involved with the asbestos removal and was only involved with the
demolition phase.[^176] The district court provided instructions on the
definition of "supervisor" for the jury to make a finding.[^177]
Ultimately, Pearson was acquitted on one count and convicted on the
other. He was sentenced to ten months' confinement and three-years'
supervised probation.[^178]

On appeal, Pearson argued that the district court applied the wrong
definition of "supervisor," and that "he did not have enough authority
to be liable as a 'supervisor' under the CAA."[^179] Both the district
court and the Ninth Circuit applied the "substantial control" standard,
which requires a defendant to have the "ability to direct the manner in
which work is performed and the authority to correct problems."[^180]
Because a "supervisor" is not necessarily the individual with the
highest authority, the Ninth Circuit held that the district court did
not abuse its discretion in instructing the jury to apply the
"substantial control" standard in determining Pearson\'s liability as a
supervisor.[^181]

Pearson contended that because he was an employee carrying out orders,
he could not be held liable as an operator under the CAA\'s criminal
provisions unless he was in knowing and willful violation of the
Act.[^182] Although the Ninth Circuit agreed that a jury could
reasonably find that an individual who qualifies as a supervisor under
section 7412 also could qualify as an employee under section 7413(h),
Pearson failed to raise and meet his burden of establishing that he was
only an employee because he contended no involvement in the asbestos
clean-up.[^183] Hence, the district court did not err in excluding
instructions to the jury on the issue of whether Pearson acted as an
employee.[^184]

#### DEALING WITH ASBESTOS PROACTIVELY

#### One should always be on the lookout for any proposed projects involving maintenance, renovation, demolition or additions to pre-1980 era structures. When reviewing their related planning documents such as Categorical Exclusions, Environmental Assessments or Environmental Impact Statements under the National Environmental Policy Act,[^185] one should ensure that asbestos issues are addressed, especially asbestos testing and hazard abatement.

As previously mentioned, AFI 32-1052, *Air Force Facility Asbestos
Management*, requires Air Force bases to conduct facility asbestos
surveys and develop Asbestos Management and Operating Plans.[^186] The
Management Plan should include an inventory of buildings surveyed with
known ACM and be closely scrutinized during Environmental Compliance
Assessment and Management Program assessments to ensure accuracy.[^187]
It can be an invaluable resource tool, but is only as good as it is
accurate.

Remember that any grievance filed for asbestos EDP on behalf of
wage-grade employees should be immediately coordinated with AFLSA/CLLO.
Their timely involvement will ensure that the case is appropriately
assessed and adequate preparations are made for a response.

Lastly, where installation property is being transferred outside DoD,
one should ensure that Environmental Baseline Surveys give notice of the
presence of any asbestos to subsequent owners.[^188] This can be a
pivotal point in later disputes over liability for ACM remediation and
disposal costs.

VIII\. CONCLUSION

Asbestos can cause significant environmental issues with pre-1980s
structures. There are many potentially applicable environmental statutes
and regulations. To assure compliance and avoid civil or criminal
penalties, attorneys should proactively ensure that any asbestos
remediation requirements have been properly analyzed and incorporated
into management and abatement planning.

[^1]: \* *Lt Col James V. Cannizzo (B.S., New Mexico State University;
    J.D., University of New Mexico School of Law; LL.M. (Environmental
    Law), George Washington University School of Law) is the Regional
    Counsel at the Air Force Regional Environmental Office in Atlanta,
    Georgia. He is a member of the New Mexico Bar.*

[^2]: *See* 29 C.F.R. §§ 1910.1001(b) and 1926.1101(b) (2003). A *de
    facto* ban on some asbestos manufacturing began in the late 1970s
    due to a large volume of asbestos product liability lawsuits and
    EPA's 1979 announcement that it would begin promulgating a rule to
    ban asbestos. *See generally* Rita L. Wecker, *Case Comment: A
    \"Hard Look\" at a Soft Analysis, Corrosion Proof Fittings v.
    Environmental Protection Agency*, 4 B.U. PUB. INT. L.J. 145 (Spring,
    1994). *See also* Advance Notice of Proposed Rulemaking, 44 Fed.
    Reg. 60,061 (October 17,1979).

[^3]: U.S. Environmental Protection Agency (EPA) Office of Air Quality
    and Standards Factsheet, *Asbestos: Health and Exposure*, *at*
    <http://www.epa.gov/oppt/asbestos/health.pdf>.

[^4]: EPA Asbestos Factsheet, *at*
    <http://www.epa.gov/oppt/asbestos/asbe.pdf>.

[^5]: *Id.*

[^6]: An experienced asbestos management and environmental engineer
    advises that asbestos is fairly uncommon in ceiling tiles, which are
    typically mistaken for asbestos because of asbestos containing
    material (ACM) above them dropping fibers. Telephone interview with
    Michael Redfern, AETC/CEVQ (Jan. 27, 2003).

[^7]: *See* EPA Asbestos Factsheet, *Where Can Asbestos Be Found?, at*
    <http://www.epa.gov/opptintr/asbestos/asbuses.pdf>. *See also* EPA
    Asbestos Factsheet, *Asbestos in the Home, at*
    <http://www.epa.gov/asbestos/ashome.html#1>.

[^8]: 29 C.F.R. §§ 1910.1001(b) and 1926.1101(b) (2003). *See* *also*
    EPA Asbestos Factsheet*, Demolition Practices Under The Asbestos
    NESHAP*, *at*
    <http://www.epa.gov/region04/air/asbestos/demolish.htm>. Nonfriable
    asbestos materials are classified as either Category I or Category
    II material. Category I material is defined as asbestos containing
    resilient floor covering, asphalt roofing products, packings and
    gaskets. *Id*. Asbestos containing mastic is also considered a
    Category I material. *Id*. Category II material is defined as all
    remaining types of non-friable ACM not included in Category I that,
    when dry, cannot be crumbled, pulverized or reduced to powder by
    hand pressure. *Id*. Nonfriable asbestos cement products such as
    transite are an example of Category II material. *Id*.

[^9]: *Id.*

[^10]: *See* EPA Asbestos Factsheet, *supra* note 3.

[^11]: *Id.*

[^12]: *Id.*

[^13]: 29 C.F.R. § 1910.1001(b)(2003). Defining ACM as material
    containing greater than 1% asbestos.

[^14]: *Id*. *See also* 29 C.F.R. § 1926.1101(b) (2003); and *Demolition
    Practices Under the Asbestos Neshap*, *supra* note 7.

[^15]: *Id.*

[^16]: *Id.*

[^17]: *Compare* the requirements EPA promulgated per its authority
    under the Asbestos Hazard Emergency Response Act (AHERA) at 40
    C.F.R. § 763(a) (requiring local education authorities to identify
    and manage both friable and nonfriable ACM) *with* the regulations
    EPA issued under the Clean Air Act (CAA) at 40 C.F.R. 61, Sbpt. M
    (allowing intact asbestos to be left in place).

[^18]: *See* ANDREW N. DAVIS & PAUL E. SCHAFFMAN, THE HOME
    ENVIRONM[en]{.smallcaps}TAL SOURCEBOOK 45 (1996).

[^19]: Approximately 5.7 million cubic feet of regulated
    asbestos-containing material (RACM) is disposed of annually from
    demolition and renovation operations. EPA, *Common Questions on the
    Asbestos NESHAP* *at*
    <http://www.epa.gov/region04/air/asbestos/asbqa.htm>.

[^20]: *See* *EPA Study of Asbestos-Containing Materials in Public
    Buildings, A Report to Congress*, Cat. No. 3C.2bE (February, 1988),
    *cited in* 134 Cong. Rec. S. 3155 (1988).

[^21]: While most states have training and accreditation programs, OSHA
    also maintains national training materials. *See* Environment,
    Health and Safety Online, *Training Materials for OSHA's Asbestos
    Standards, at* <http://www.ehso.com/Asbestos/asbesttrn.php>. This
    training covers exposure limits, materials that are presumed to
    contain asbestos, specific procedures for floor care, brake and
    clutch repair, and duties of building owners like identification,
    record keeping, notification, signs and labels, awareness training
    for employees who will perform housekeeping activities in asbestos
    containing areas and medical surveillance. *Id*. EPA also has
    accreditation requirements. For removal of non-intact, friable
    asbestos in buildings, EPA requires accreditation training for
    workers and supervisors alike. *See* 40 C.F.R Sbpt. E, App. C
    (2003). This training is identical to that required by the
    Occupational Safety and Health Act (OSHA) for Class I and II work,
    but it must be obtained from an EPA approved course provider. *Id*.

[^22]: 15 U.S.C. §§ 2601-2671 (2003).

[^23]: *See* Toxic Substances Control Act (TSCA) Inventory Update Rule
    Amendments, 64 Fed. Reg. 165, 46,774 (August 26, 1999)(codified at
    40 C.F.R. pt. 710).

[^24]: TSCA addresses asbestos primarily through the Asbestos Hazard
    Emergency Response Act (AHERA). 15 U.S.C. §§ 2641 -- 2656 (2003).

[^25]: 29 U.S.C. §§ 651- 678 (2003).

[^26]: 42 U.S.C. §§ 7401 - 7671q (2003).

[^27]: 29 U.S.C. §§ 651- 678 (2003).

[^28]: *Id*. § 651.

[^29]: 29 C.F.R. § 1926.1101 and 29 C.F.R. § 1910.1001(b) (2003). The
    Construction Standard for Asbestos contains four classifications of
    work in the definition section: Class I is the removal of thermal
    system insulation, presumed asbestos containing material (PACM) and
    surfacing material containing more than 1% asbestos; Class II is the
    removal of all other ACM; Class III regulates maintenance and repair
    operations disturbing asbestos; and Class IV regulates housekeeping
    and custodial operations where employees contact ACM or PACM but do
    not disturb it. The permissible exposure limit (PEL) is defined at
    29 C.F.R. § 1926.1101(c)(2003).

[^30]: 29 C.F.R. § 1926.1101(c)(1) (2003). An excursion limit is a
    short-term limit of 30 minutes whereas the exposure limit is based
    on 8 hours. The excursion limit is higher than the exposure limit
    because the excursion duration is for a much shorter period (i.e.
    for short periods, it is allowable for an employee to breathe in
    higher levels). However, according to EPA, there is no "safe" amount
    of asbestos. *See* EPA Asbestos Factsheet, *supra* note 3.

[^31]: Engineering controls include measures such as vacuuming and
    wetting down dust, storing debris in leak tight containers,
    enclosing areas with plastic sheeting, as well as ventilating and
    filtering work areas. *See* 29 C.F.R. § 1926.1101(g) and 29 C.F.R. §
    1910.1001(f)(1) (2003).

[^32]: The General Industry Asbestos Standard includes: PEL at 29 C.F.R.
    § 1910.1001(c) (2003); Signage at § 1910.1001(j)(3); Employee
    Information at § 1910.1001(j)(2); Labeling at § 1910.1001(j)(4);
    Employee Training at § 1910.1001(j)(7); and Record Keeping at §
    1910.1001(j)(2).

[^33]: 29 C.F.R. § 1910.1001(a)(2) ("This section does not apply to
    construction work as defined in 29 C.F.R. § 1910.12(b) (Exposure to
    asbestos in construction work is covered by 29 C.F.R. §
    1926.1101)"). A good way to seek clarification in instances where
    the regulations are unclear is OSHA's website, which contains
    Standard Interpretation and Compliance Letters *at*
    <http://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=INTERPRETATIONS&p_toc_level=0&p_keyvalue=I19960328.html>.

[^34]: *See* OSHA Fact Sheet on Asbestos at 1 (2002), *at*
    <http://www.osha.gov/OshDoc/data_AsbestosFacts/asbestos-factsheet.pdf>.

[^35]: Exec. Order No. 12,196 §§ 1-201 and 401, 3 C.F.R. § 145 (1980).

[^36]: *Air Force Occupational and Environmental Safety, Fire
    Protection, and Health (AFOSH) Program*, AFI 91-301 (June 1, 1996)*,
    available at*
    [http://www.e-publishing.af.mil/pubfiles/af/91/afi91-301/afi91-301.pdf]{.underline}*.*

[^37]: *Controlling Exposures To Hazardous Materials*, AFOSH Standard
    48-8 (September 1, 1997), *available at*
    [http://www.e-publishing.af.mil/pubfiles/af/48/afoshstd48-8/afoshstd48-8.pdf]{.underline}.

[^38]: *Air Force Facility Asbestos Management*, AFI 32-1052 (March 22,
    1994), *available at*
    [http://www.e-publishing.af.mil/pubfiles/af/32/afi32-1052/afi32-1052.pdf]{.underline}.

[^39]: *Air Quality Compliance*, AFI 32-7040 (May 9, 1994), *available
    at*
    [http://www.e-publishing.af.mil/pubfiles/af/32/afi32-7040/afi32-7040.pdf]{.underline}.

[^40]: *Environmental Baseline Surveys in Real Estate Transactions*, AFI
    32-7066 (April 25, 1994), *available at*
    [http://www.e-publishing.af.mil/pubfiles/af/32/afi32-7066/afi32-7066.pdf]{.underline}.

[^41]: *Medical Service Environmental Quality Programs*, AFI 48-119
    (July 25, 1994), *available at*
    [http://www.e-publishing.af.mil/pubfiles/af/48/afi48-119/afi48-119.pdf]{.underline}.

[^42]: 42 U.S.C. §§ 7401 - 7671q (2003).

[^43]: 42 U.S.C. § 7412 (2003).

[^44]: *Common Questions on the Asbestos NESHAP*, *supra* note 18. Also
    under its Clean Air Act (CAA) authority, EPA has promulgated
    specific standards for asbestos, including the *Asbestos Training
    Requirements-Model Accreditation Plan* at 40 C.F.R. § 763, Appendix
    C (2003) and *Bulk Sampling Requirements for Surfacing Material*, 40
    C.F.R. §§ 763.86-763.87 (2003).

[^45]: As of 1990, 45 states were delegated authority. *See* *Common
    Questions on the Asbestos NESHAP*, *supra* note 18. In 2000, EPA
    promulgated a revised rule on worker protection, amending the worker
    protection rule to cover state and local government employees. *See*
    *Asbestos Worker Protection*, 65 Fed. Reg. No. 221, 69210 (November
    15, 2000), *available at*
    <http://www.epa.gov/opptintr/asbestos/wpr.pdf>, *amending* 40 C.F.R.
    § 763, Sbpt. G (2003).

[^46]: RACM is defined as, \"(a) friable asbestos material; (b) Category
    I nonfriable ACM that has become friable; (c) Category I nonfriable
    ACM that will be or has been subjected to sanding, grinding, cutting
    or abrading; or (d) Category II nonfriable ACM that has a high
    probability of becoming or has become crumbled, pulverized or
    reduced to powder by the forces expected to act on the material in
    the course of demolition or renovation operations

    regulated by this Sbpt.\" 40 C.F.R. § 61.141 (2003). For a
    discussion of threshold quantities, see *infra* Section IV.B. of
    this text.

[^47]: *Common Questions on the Asbestos NESHAP*, *supra* note 18.

[^48]: *Id.*

[^49]: *Id.*

[^50]: 15 U.S.C. §§ 2601 -- 2671 (2003).

[^51]: *See* 40 C.F.R. pt. 763 Sbpt. E (2003).

[^52]: Asbestos School Hazard Abatement Reauthorization Act (ASHARA),
    Pub. L. No. 101-637, 100 Stat. 4589 (1990), *amending* AHERA, 15
    U.S.C. §§ 2641 -- 2656 (1988).

[^53]: AHERA, Pub. L. No. 99-519, 100 Stat. 2970 (1986) (at 15 U.S.C. §§
    2641 -- 2656 (1986)).

[^54]: *Id.*

[^55]: *See* EPA, *The Asbestos Informer*, *at*
    <http://www.epa.gov/region04/air/asbestos/inform.htm>.

[^56]: *Id.*

[^57]: *See* ASHARA, Pub. L. No. 101-637, *supra* note 51. Specifically,
    15 U.S.C. § 2646(a)(1) and (3) (2003) require accreditation.

[^58]: *Id.*

[^59]: 40 C.F.R. pt. 763, Sbpt. E, App. C; 59 Fed. Reg. 5251 (Feb. 3,
    1994) and 60 Fed. Reg. 31922 (June 19, 1995).

[^60]: 65 Fed. Reg. No. 204, 63071-63073 (October 20, 2000).

[^61]: *Id. See also* 40 C.F.R. pt. 763*,* Sbpt. E.I.A, App. C (2003).

[^62]: *Id.*

[^63]: *Id.*

[^64]: 42 U.S.C. §§ 9601 -- 9607 (2003).

[^65]: *Id*. §§ 9601-- 9603.

[^66]: Designation, Reportable Quantities, Notification, 40 C.F.R. pt.
    302 (2003).

[^67]: *Id.*

[^68]: 40 C.F.R. pt. 373 (2003).

[^69]: 40 C.F.R. § 373.1 (2003).

[^70]: 42 U.S.C. §§ 11001 -- 11050 (2003).

[^71]: 42 U.S.C. § 11023 (2003).

[^72]: Exec. Order No. 13,148, *Greening the Government Through
    Leadership in Environmental Management*, 65 Fed. Reg. 24595 (2000).
    This modified and revoked the previous version, Exec. Order No.
    12,856, *Federal Compliance with Right-to-Know Laws and Pollution
    Prevention Requirement*s, 58 Fed. Reg. 41981 (August 3, 1993)
    (making EPCRA reporting mandatory).

[^73]: 42 U.S.C. §§ 300f -- 300j (2003).

[^74]: The Maximum Contaminant Level for asbestos is found at Title 40
    C.F.R. § 141.51 (2003), and is equivalent to 7 million fibers
    (greater than 10 microns in length) per liter of water.

[^75]: 42 U.S.C. §§ 6901 - 6992k (2003).

[^76]: *See, e.g.*, Metal Trades, Inc. v. United States, 810 F. Supp.
    689, 695 (D. S.C. 1992).

[^77]: This subsection was supplied by Lt Col Todi Carnes, presently the
    Deputy Staff Judge Advocate, Space and Missile Center, Los Angeles
    Air Force Base, California. It is based upon verbatim extractions
    she authored in pleadings that were filed in the case of American
    Federation of Government Employees, Local 1617 and United States
    Department of the Air Force, San Antonio Air Logistics Center, Kelly
    Air Force Base, San Antonio, Texas, Case No. 0-AR-3469, 58 F.L.R.A.
    13 (September 11, 2002) \[on file with AFLSA/JACL/CLLO\].

[^78]: 5 U.S.C. § 5343(c)(4) (2003).

[^79]: *See* 5 C.F.R. § 532.511, Sbpt. E, App. A (2003).

[^80]: *Id*.

[^81]: *Id*. at Part II, Sbpt. E, App. A (Category 16).

[^82]: Allen Park Veterans Administration Medical Center and American
    Federation of Government Employees Local 933, 34 F.L.R.A. No. 168
    (1990).

[^83]: *Compare* 5 U.S.C. § 5545(d) (1993) (In 1993, Congress authorized
    Hazardous Duty Pay (HDP) for general schedule employees; and, as it
    had previously with environmental differential pay (EDP) for
    wage-grade employees, tasked OPM to promulgate appropriate
    regulations. OPM not only promulgated an identical 8% differential
    pay for exposure to asbestos for general schedule employees, it also
    tied the payment of HDP to the OSHA PEL. 5 C.F.R. § 550.903, App. A
    (2003). Hence, there has historically been a government-wide
    standard for asbestos HDP payments to general schedule employees.)

[^84]: U.S. Dept. of the Army, Red River Army Depot Texarkana, Texas and
    American Federation of Government Employees Local 3961, 53 F.L.R.A.
    No. 11 (1997) *citing* Allen Park, *supra* note 81.

[^85]: National Defense Authorization Act of 2004, Pub. L. No. 108-136,
    117 Stat. 1392 (2003).

[^86]: *Id*. § 1122(a) (to be codified at 5 U.S.C. § 5343(c)(4)). This
    statutory standard also applies to HDP for general schedule
    employees. *Id*. § 1122(b) (to be codified at 5 U.S.C. § 5545(d)).
    This was true even before passage of the NDAA of 2004. See *supra*
    note 82. For more information on the OSHA PEL, see *supra* text
    accompanying note 29.

[^87]: For a discussion on the subject of waiver of federal sovereign
    immunity, *see* *infra* Section V.A of this text.

[^88]: *See, e.g.*, 40 C.F.R. § 63.90 (2000).

[^89]: 49 C.F.R. Ch. 1 (2003).

[^90]: *See* *Common Questions on the Asbestos NESHAP*, *supra* note 18.

[^91]: *Id.*

[^92]: *Id*.

[^93]: 40 C.F.R. § 61.145(b) (2003).

[^94]: *Id.*

[^95]: *Id*.

[^96]: *See* EPA, *Asbestos-General, at*
    <http://www.epa.gov/earth1r6/6pd/asbestos/asbgenl.htm>.

[^97]: *See* *id.*

[^98]: *See* *The Asbestos Informer, supra* note 54.

[^99]: 40 C.F.R. § 61.145(b) (2003).

[^100]: See *supra* note 28.

[^101]: *See* 40 C.F.R. pt. 763, Sbpt. E, App. C (2003). *See also* 40
    C.F.R. §§ 1926.1101 and 1910.1001 (2003).

[^102]: *Id.*

[^103]: 40 C.F.R. § 763.92(a)(2) (2003)*.*

[^104]: 40 C.F.R. § 763.92(a)(1) (2003)*.*

[^105]: For a definition of "RACM," see *supra* note 45 and accompanying
    text.

[^106]: 40 C.F.R. § 763.83 (1994).

[^107]: *See, e.g*., 29 C.F.R. § 1926.58 (1994). For example,
    \"\[a\]sbestos insulation should be removed: (a) when it is breaking
    away from the base; or (b) when the insulation is likely to be
    abraded or otherwise damaged; or (c) when the surface is very
    friable; or (d) when the resultant concentration of airborne
    asbestos dust is above the exposure limit.\" Martin S. Hall,
    *Asbestos: Fatal Fiber or Fiber Phobia - The Purchaser\'s
    Perspective*, 79 ILL. B.J. 228, n.1 (1991). When ACM does not fall
    into one of the above categories or is not likely to be
    \"disturbed,\" a program of encapsulation or enclosure may be
    economically preferable. *Id.*

[^108]: 40 C.F.R. § 763.83 (2003).

[^109]: *Id.*

[^110]: *Id.*

[^111]: *See* 29 C.F.R. §§ 1910.1001 and 1926.1101 (2003). *See also*,
    Dept. of Labor (DoL), *Better Protection Against Asbestos in the
    Workplace*, Factsheet 92-06, *at*
    <http://www.pp.okstate.edu/ehs/training/oshasbes.htm>. If air
    sampling shows that no fibers are airborne, filters and masks may
    not be required. High-efficiency particulate air (HEPA) filters are
    capable of trapping and retaining at least 99.97 percent of all
    mono-dispersed particles of 0.3 micrometers in diameter*.* 29 C.F.R.
    § 1926.1101(b) (2003).

[^112]: *Id.*

[^113]: EPA defines "adequately wet" to mean "sufficiently mix or
    penetrate with liquid to prevent the release of particulates." EPA,
    *Asbestos NESHAP Adequately Wet Guidance*, No. EPA340/1-90-019, *at*
    <http://www.epa.gov/region04/air/asbestos/awet.htm>. If visible
    emissions are observed coming from ACM, then that material has not
    been adequately wetted. *Id*.

[^114]: EPA, *Asbestos/NESHAP Regulated Asbestos Containing Materials
    Guidance*, *at*
    <http://www.epa.gov/region4/air/asbestos/asbmatl.htm>[.]{.underline}

[^115]: 48 C.F.R. § 52.236-13 (2003).

[^116]: *See* *DoD Safety and Occupational Health (SOH) Program*, DODI
    6055.1, par. 2.5 (August 19, 1998). The DODI generally does not
    apply to DoD contractor personnel and contractor operations. *Id*.
    at para. 2.5. Additional details are given in enclosure E5 of the
    DODI. In peacetime operations performed in the United States, the
    contractor is responsible directly to the federal or state
    occupational safety and health authority for the safety and health
    of contractor employees. *Id*. at E5. DoD safety and health
    responsibilities in contractor plants and contractor operations on
    DoD property are generally limited to helping to ensure the safety
    of DoD owned equipment, protection of the production base,
    protection of government property, protection of on-site DoD
    personnel and protection of the public. *Id*. A contractor is
    responsible for the safety and health of employees and protection of
    the public at contractor plants and work sites. *Id*.

    *See also* *Safety, USAF Mishap Prevention Program*, AFI 91-202,
    para 3.5 (August 1, 1998):

    > AF Safety personnel must not put anything in a contract that
    > establishes a requirement for the Air Force to protect contractor
    > employees or their equipment. Likewise, do not include anything in
    > inspection or surveillance programs to give the perception that
    > the Air Force is supervising or observing contractor personnel to
    > provide for their personal safety or to ensure the safety of their
    > equipment.

    *See also*, *Safety, General Industrial Operations,* AFOSHSTD 91-66
    (October 1, 1997) ("This standard applies to all US Air Force
    industrial operations . . . This standard does NOT apply to
    contractors working on Air Force installations, including
    contractors who use government furnished equipment and facilities.
    They are responsible for the safety and health of their
    personnel.").

[^117]: Environmental liability could arise in relation to the CAA
    Asbestos National Emission Standard for Hazardous Air Pollutant
    (NESHAP) or under the Resource Conservation and Recovery Act.

[^118]: 29 C.F.R. §§ 1910.1001 and 1926.1101 (2003)*. See also,
    Controlling Exposures To Hazardous Materials,* AFOSH Standard 48-8,
    Attach. 9 (September 1, 1997), *available at*
    <http://www.e-publishing.af.mil/pubfiles/af/48/afoshstd48-8/afoshstd48-8.pdf>[.]{.underline}
    *See also* *Better Protection Against Asbestos in the Workplace,
    supra* Note 110.

[^119]: *Id*. To avoid confusion, the OSHA standards apply to
    contractors performing work on military installations whereas the
    AFOSH standards apply to military and Air Force civilian personnel
    performing asbestos work. The standards are very similar.

[^120]: *Better Protection Against Asbestos in the Workplace, supra*
    note 110.

[^121]: *Id.*

[^122]: *Id.*

[^123]: *Id.*

[^124]: *Id.*

[^125]: *Id*. The term "positive pressure" implies that the pressure
    within the respiratory inlet covering (i.e., the facepiece, hood or
    helmet) is somewhat greater than outside pressure and that any air
    movement will be outward. Since air contaminants are unlikely to
    travel against air flow, it follows that positive pressure devices
    should provide high levels of protection. Larry Janssen, *What is a
    Positive Pressure Respirator,* 3M JOB HEALTH HIGHLIGHTS, Vol. 15(1)
    (1977), *available at*
    <http://multimedia.mmm.com/mws/mediawebserver.dyn?000000JHT4507Da0nDa000A85lx9999z>.

[^126]: *Better Protection Against Asbestos in the Workplace, supra*
    note 110. *See also* AFOSH Standard 48-8*, supra* note 117.

[^127]: *Id.*

[^128]: *Id.*

[^129]: A negative pressure respirator is a mask that does not maintain
    overpressure, it merely filters air being breathed in. *See* 40
    C.F.R. § 1926.1101(h)(3)(i) (2003) for specific requirements on the
    type of mask required for different airborne asbestos levels.
    Disposable masks are not allowed when working with ACM. *Id*.

[^130]: *Better Protection Against Asbestos in the Workplace, supra*
    note 110.

[^131]: The waste disposal site must be operated in compliance with 40
    C.F.R. § 61, Sbpt. M (2003).

[^132]: 40 C.F.R. § 61.150(a)(3) (2003).

[^133]: Category I or Category II nonfriable ACM that has been
    contaminated by RACM and cannot be decontaminated (e.g., bulk
    building debris) must be treated as ACM waste. Category I or
    Category II ACM that does not meet the definition of RACM after a
    demolition or renovation, and is not contaminated with RACM, is not
    ACM waste and is not subject to the wetting requirement of 40 C.F.R.
    § 61.150(a)(3) (2003). *See* *Demolition Practices Under The
    Asbestos NESHAP*, *supra* note 7. Category I or II nonfriable ACM
    that is not subject to 40 C.F.R. § 61.150(a)(3) would still have to
    be disposed of in a landfill accepting building debris, a landfill
    that operates in accordance with 40 C.F.R. § 61.154 (2003) or at a
    facility that operates in accordance with 40 C.F.R. § 61.155 (2003).
    *Id.* This waste material would not be allowed at any facility that
    would sand, grind, cut or abrade the non-RACM waste or otherwise
    turn it into RACM waste, such as a cement recycling facility. *Id.*
    In addition, if Category I or II nonfriable ACM is sanded, ground,
    cut or abraded during disposal at a landfill before burial, it is
    subject to the NESHAP. *Id.*

[^134]: Waste generators include asbestos mills, manufacturers,
    fabricators, demolition, renovation and spraying operations. 40
    C.F.R. §§ 61.149 and 150 (2003).

[^135]: *See* *The Asbestos Informer, supra* note 54.

[^136]: *See* EPA Field Guide, *Reporting and Record Keeping
    Requirements For Waste Disposal,* *at*
    <http://www.epa.gov/region4/air/asbestos/waste.htm>[.]{.underline}

[^137]: *See* *The Asbestos Informer, supra* note 54.

[^138]: *Id.*

[^139]: *See* *Reporting and Record Keeping Requirements, supra* note
    135.

[^140]: *Id.*

[^141]: *Id.*

[^142]: Memorandum from OSD-ES (Subject: Asbestos, Lead Paint and Radon
    Policies at BRAC Properties) (October 31, 1994), *limited
    availability at*
    [https://aflsa.jag.af.mil/GROUPS/AIR_FORCE/ENVLAW/DOD-asb-LBP-radon-BRAC.doc]{.underline}.

[^143]: *Id*.

[^144]: *Id*.

[^145]: *See,* *e.g.*, Stephen Breyer, *Our Democratic Constitution*, 77
    N.Y.U. L. REV. 245 (May 2002), *available at*
    <http://www.nyu.edu/pages/lawreview/77/2/breyer.pdf>.

[^146]: DoE v. Ohio, 503 U.S. 607, 615 (1992); United States v.
    Mitchell, 445 U.S. 535, 538-39 (1980); and Eastern Transportation
    Co. v. United States, 272 U.S. 675, 686 (1927).

[^147]: *EPA Assessment of Penalties Against Federal Agencies for
    Violation of the Underground Storage Tank Requirements of the
    Resource Conservation and Recovery Act*, OLC LEXIS 20 (June 14,
    2000), *available at* <http://www.usdoj.gov/olc/ustop2.htm> (U.S.
    Dept. of Justice (DoJ) appears to say that sovereign immunity does
    not apply between two federal agencies in an enforcement action).

[^148]: *Administrative Assessment of Civil Penalties Against Federal
    Agencies Under the Clean Air Act,* OLC LEXIS 29 (July 16, 1997),
    *available at* <http://www.usdoj.gov/olc/cleanair_op.htm>.

[^149]: 15 U.S.C. § 2688 (2003).

[^150]: Exec. Order No. 12,196, 45 Fed. Reg. 12,769, 3 C.F.R. § 145
    (1980).

[^151]: Exec. Order No. 12,196 §§ 1-201 and 401. DoL has promulgated 29
    C.F.R. pt. 1960 (2003), which contains the Basic Program Elements
    for OSHA. *See* 60 Fed. Reg. 34851 (July 5, 1995) for most recent
    promulgation of rule.

[^152]: 29 C.F.R. § 1960.31.

[^153]: Exec. Order No. 12,196, *supra* note 149 at § 1-101 ("This order
    applies to all agencies of the Executive Branch except military
    personnel and uniquely military equipment, systems, and
    operations.").

[^154]: *Id.* at § 1-401(I). OSHA inspectors may focus on employee
    protective measures and equipment, training, monitoring and other
    regulatory requirements identified in Volume 29 of the C.F.R. An EPA
    or state environmental department inspector may focus on
    notification, protective measures, disposal and other requirements
    identified in 40 C.F.R. pt. 61. There is substantial overlap in what
    OSHA and EPA cover.

[^155]: *Id.*

[^156]: OSHA Enforcement authority is derived from powers provided by 29
    U.S.C. §§ 658 - 659 (Procedure for Enforcement), 662 (Procedures to
    Counteract Imminent Dangers), and 666 (Penalties) (2003).

[^157]: Memorandum by Deputy Assistant Secretary of the Air Force for
    Environment, Safety and Occupational Health, *Air Force Policy on
    the Payment of Fines and Penalties for Violations of the Clean Air
    Act (CAA)*, (July 17, 2002), *limited availability at*
    [https://aflsa.jag.af.mil/GROUPS/AIR_FORCE/ENVLAW/Payment%20of%20Fines%20and%20Penalties%20for%20CAA.pdf](https://aflsa.jag.af.mil/GROUPS/AIR_FORCE/ENVLAW/Payment of Fines and Penalties for CAA.pdf)[.]{.underline}
    *See also* United States v. Tennessee Air Pollution Control Board,
    185 F.3d. 529 (6th. Cir 1999).

[^158]: *Air Force Policy on the Payment of Fines and Penalties*,
    *supra* note 156.

[^159]: *Id*.

[^160]: Pub. L. No. 102-386 (October 6, 1992), *amending* federal
    facility language at 42 U.S.C. § 6961 and the definition of "person"
    at § 6903(15).

[^161]: *See* *Metal Trades,* 810 F. Supp. 689 (holding that asbestos is
    a statutory hazardous waste in the context of a Navy contract appeal
    where the issue was whether asbestos could be characterized as a
    RCRA hazardous waste).

[^162]: *See EPA Reports Record Highs in Fines Collected From Criminal
    Polluters*, ASBESTOS & LEAD ABATEMENT REP., March 10, 1997, at 1;
    and Traci Watson, *Today\'s EPA: You Pollute, We Prosecute*, USA
    TODAY, May 21, 1998, at A5 (discussing increase in criminal
    environmental prosecutions and noting 300% increase in environmental
    investigative force).

[^163]: *See, e.g.,* United States v. Dee, 912 F.2d 741 (4th Cir.
    1990)(supervising engineer responsible for operations and RCRA
    compliance at the U.S. Army chemical research laboratory convicted
    under RCRA for "knowingly . . . stor\[ing\], or dispos\[ing\] of . .
    . hazardous waste . . .without a permit").

[^164]: *See* *Civil Litigation*, AFI 51-301, para. 1.3 (July 1,
    2002)*.* DoJ will not defend an individual against a federal
    criminal action. For state criminal actions, DoJ will only defend
    employees who acted within the scope of employment.

[^165]: 15 U.S.C. § 2615(b) (2003).

[^166]: *Metal Trades*, 810 F. Supp. at 695.

[^167]: *See, e.g.*, United States v. Technic Services, No. 01-30057
    (9^th^ Cir. Dec. 23, 2002) (Alaska asbestos removal contractor
    convicted of air and water pollution offenses and obstruction of
    justice).

[^168]: United States v. Weintraub, 273 F.3d 139 (2nd Cir. 2001).

[^169]: United States v. Buckley, 934 F.2d 84 (6th Cir. 1991).

[^170]: United States v. Dipentino, 242 F.3d 1090, 1096 (9th Cir. 2001).
    For other illustrative asbestos cases, *see* United States v.
    Louisville Edible Oil Prods., Inc., 926 F.2d 584, 588 (6th Cir.
    1991); United States v. Fern, 155 F.3d 1318, 1325-26 (11th Cir.
    1998); United States v. Tomlinson, 1999 U.S. App. LEXIS 16758 (9th
    Cir. 1999); United States v. Chau, 293 F.3d 96 (3rd Cir. 2002);
    United States v. Shurelds, 1999 U.S. App. LEXIS 3521 (6th Cir.
    1999).

[^171]: United States v. Pearson, 274 F.3d 1225, 1229 (9th Cir 2001).

[^172]: 42 U.S.C. §§ 7412-7413 (1990).

[^173]: 40 C.F.R. § 61.141 (2001).

[^174]: *Pearson*, 274 F.3d at 1229.

[^175]: *Id.* at 1228.

[^176]: *Id.* at 1229.

[^177]: *Id.* at 1230.

[^178]: *Id.*

[^179]: *See* 42 U.S.C. § 7412 or § 7413 (1990) for definition of
    "supervisor."

[^180]: *Pearson*, 274 F.3d at 1231.

[^181]: *Id.* at 1233.

[^182]: *Id*. at 1232. An employee "who is carrying out his normal
    activities and who is acting under orders from the employer" is not
    liable under the CAA\'s criminal provisions as an operator except
    for knowing and willful violations. 42 U.S.C. § 7413(h)(1990).

[^183]: *Id*. at 1232.

[^184]: *Id*.

[^185]: *See* *The Environmental Impact Analysis Process*, AFI 32-7061
    (March 12, 2003). The process may also be found at 32 C.F.R. § 989
    *et. seq* (2003).

[^186]: *Air Force Facility Asbestos Management,* AFI 32-1052 (March 22,
    1994), *available at*
    [http://www.e-publishing.af.mil/pubfiles/af/32/afi32-1052/afi32-1052.pdf]{.underline}.

[^187]: *Environmental Compliance Assessment and Management Program
    (ECAMP),* AFI 32-7045 (July 1, 1998).

[^188]: An Environmental Baseline Survey may be required in accordance
    with *Environmental Baseline Surveys in Real Estate Transactions*,
    AFI 32-7066 (April 25, 1994).