03/31/88
Revised Asbestos NESHAP Strategy
MEMORANDUM MARCH 31, 1988
SUBJECT: Revised Asbestos NESHAP Strategy
FROM: /s/ John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
/s/ Elliott J. Gilberg, for
Michael S. Alushin
Associate Enforcement Counsel for Air
TO: Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Directors
Regions IV and VI
Air and Radiation Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and X
Regional Counsels
Regions I-X
Attached is the revised strategy for the implementation and enforcement
of the asbestos demolition and renovation requirements. The April 6, 1984
Asbestos Strategy Document was issued concurrently with the repromulgation
of the asbestos NESHAP. The goal of the 1984 strategy was to attain 100%
compliance through the implementation of an inspection plan. According to
the 1984 strategy an inspection plan could consist of inspecting "all
sources, all contractors, or any other program consistent with the Agency
goal of 100% compliance." Because the annual notification rate has risen
dramatically and is expected to be well above 50,000 for FY 88,
NOTE: For the referenced
attachments, contact OECM-AED
or OAQPS-SSCD.
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it is no longer feasible for most agencies to inspect all sites. Inspecting
all contractors may be the best alternative for an effective inspection
plan, however, the 1984 strategy did not fully describe how such a plan
would be implemented. After auditing three Regional asbestos NESHAP
enforcement programs, the Inspector General's office remarked that the 1984
strategy "does not provide additional criteria for developing an effective
inspection strategy." The revised strategy provides the criteria for
targeting inspections among a field of an estimated 5,000 contractors as
opposed to selecting inspection sites from over 50,000 notifications.
Inspection efforts focused on contractors should result in a more resource-
effective enforcement program.
Major changes have been made to the original computer tracking system
described in the draft revised strategy. In response to regional comments
the national tracking system will be in DBASE III format rather than CDS.
This will allow tracking of the number of notifications and associated
compliance activity in each state, as opposed to worksite location for each
notification. Regions will be expected to send quarterly reports of the
data elements contained in APPENDIX A of the revised strategy to
Headquarters, preferably through electronic transmission. The aggregated
nationwide database information will be used to target inspections and
promote enforcement options as described in the strategy.
A new section on outreach has been added to the strategy describing
methods of communication with the regulated community. Other additions
include new appendices on identifying non-notifiers, EPA technical
assistance, generic 113(a) and temporary restraining orders, and finalized
guidance on contractor listing. Each originally drafted section of the
revised strategy has been modified to accommodate comments from the Regions,
OTS, and ALAPCO.
Since the asbestos NESHAP program is primarily delegated to the States,
the success of this strategy depends on implementation and cooperation from
the States. It is important that the States understand that the tracking
system
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will contain a nationwide database of contractor compliance histories, and
that the States will utilize this tracking system extensively. Any
questions or comments should be addressed to Jim Engel of my staff at 382-
2877.
Attachment
cc: Air Compliance Branch Chiefs
Asbestos NESHAP Contacts
William Becker
Gerald Emison
John Neylan
David Kling
Sims Roy
TABLE OF CONTENTS
Asbestos Strategy . . . . . . . . . . . . . . . . . . . . . . . .pp 1 - 19.
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . .pp 1 - 3.
Strategy Components . . . . . . . . . . . . . . . . . . . . . .pp 4 - 19.
1. Outreach. . . . . . . . . . . . . . . . . . . . . . . . . . . p 4.
2. Contractor Training . . . . . . . . . . . . . . . . . . .pp 4 - 5.
3. Inspector Training. . . . . . . . . . . . . . . . . . . . . . p 5.
4. Inspections . . . . . . . . . . . . . . . . . . . . . . .pp 5 - 8.
5. Inspection Targeting . . . . . . . . . . . . . . . . . . pp 8 - 10.
6. Program Alternatives. . . . . . . . . . . . . . . . . . pp 10 - 12.
7. Federal Enforcement Options . . . . . . . . . . . . . . pp 12 - 15.
8. Choosing Enforcement Option . . . . . . . . . . . . . . pp 15 - 16.
9. Assessing Penalties . . . . . . . . . . . . . . . . . . . . . p 17.
10. Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . p 17.
11. Regional Oversight. . . . . . . . . . . . . . . . . . . pp 17 - 18.
12. Cross-Program Coordination. . . . . . . . . . . . . . . pp 18 - 19.
APPENDIX A
Tracking Asbestos Sources . . . . . . . . . . . . . . . . . . . .A1 - A5.
APPENDIX B
Asbestos Demolition / Renovation Penalty Policy . . . . . . . . . . . B1.
APPENDIX C
Uniform Hazardous Waste Manifest. . . . . . . . . . . . . . . . . . . C1.
APPENDIX D
113 Compliance Order / 114 Information Request. . . . . . . . . D1 - D11.
APPENDIX E
Pre-Referral Settlement Procedures. . . . . . . . . . . . . . . E1 - E36.
APPENDIX F
Identifying Non-Notifiers . . . . . . . . . . . . . . . . . . . F1 - F19.
APPENDIX G
SPMS Reporting Format . . . . . . . . . . . . . . . . . . . . . . . . G1.
APPENDIX H
Standardized Inspection Checklist . . . . . . . . . . . . . . . .H1 - H3.
APPENDIX I
List of State Certification Requirements. . . . . . . . . . . . .I1 - I3.
APPENDIX J
States Covered by Worker Protection Rule. . . . . . . . . . . . . . . J1.
APPENDIX K
Contractor Listing Application. . . . . . . . . . . . . . . . . K1 - K13.
APPENDIX L
EPA Technical Assistance for Asbestos Control . . . . . . . . . L1 - L12.
APPENDIX M
Generic 113(a) order and TRO. . . . . . . . . . . . . . . . . . M1 - M20.
Asbestos Demolition and Renovation Enforcement Strategy
Introduction
Asbestos is recognized as a human and animal carcinogen and, combined
with cigarette smoking, a powerful co-carcinogen. Malignant diseases caused
by asbestos exposure include bronchial carcinoma, lung adenocarcinoma,
pleural and peritoneal mesothelioma, alimentary tract carcinoma, and tumors
of other sites. Asbestosis, a fibrotic lung disease caused by asbestos
fibers, is also associated with long-term exposure.
These diseases are linked to ambient environmental exposures as well as
to occupational exposures. To reduce ambient exposures and the accompanying
health risk, EPA regulated asbestos under the National Emission Standards
for Hazardous Air Pollutants ( NESHAPS ). This enforcement strategy
document has been prepared in order to ensure compliance with the NESHAP
standard. By specifying actions to be taken and a procedure to follow, this
strategy will provide effective and uniform enforcement of the standard by
Regions and delegated States. This strategy document is also intended to
provide emphasis and assurances to Regional Offices and States that asbestos
occupies a high priority and that EPA is totally committed to a strong
enforcement posture.
Background
EPA first promulgated the asbestos NESHAP on April 6, 1973. Parts of
the standard were in the form of work practice ( nonnumerical )
requirements. The Supreme Court held, in Adamo Wrecking Company v. United
States, 434 U.S. 275 (1978) that these were not emissions standards within
the meaning of the 1970 Clean Air Act. Since EPA, at the time the asbestos
regulations were promulgated, had authority to promulgate and enforce only
emissions standards, the Court upheld dismissal of the criminal enforcement
action brought against Adamo for violations of Section 112(c)(1)(B) of the
1970 Act.
On August 7, 1977, Section 112(e) was added to the Act to specifically
authorize design, equipment, work practice, and operational standards.
Although regulations promulgated since that time could contain work practice
standards, there was doubt as to the way of dealing with regulations
promulgated prior to that time. EPA repromulgated many of the asbestos work
practice standards on June 19, 1978. However, some work practices were not
repromulgated, and were not
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considered enforceable by EPA. This led to confusion and greatly hindered
litigation efforts. In an attempt to end this confusion and ensure all
aspects of the asbestos NESHAP are enforceable, EPA repromulgated the entire
asbestos standard in April of 1984.
The strategy document presented here addresses training, inspection
techniques, judicial and administrative enforcement mechanisms, and other
aspects essential for a successful program of compliance with the
repromulgated regulations. Flexibility is provided so that the enforcing
authority, be it the EPA Regional Office or the delegated State or local
agency, may select other options, provided a high level of compliance is
achieved. The strategy also is designed to ensure coordination between EPA
Regions and their delegated States. Since 38 States presently have asbestos
enforcement delegation, it is essential these States feel a part of the
process and have the capability and desire to successfully enforce the
standard.
An EPA Compliance Data System analysis showed that the number of
demolition and renovation sources is greater than that of all other asbestos
source categories combined, and the compliance status much worse. The
strategy is thus limited to the renovation and demolition category. An
additional reason for this limitation is that since renovations and
demolitions are transitory operations, they are more difficult to inspect
and require specific enforcement guidance. This limitation does not mean
other asbestos sources should be ignored, but means rather that EPA believes
the States have sufficient knowledge of these other sources to do a
satisfactory job without additional guidance.
Summary of Regulations
Before discussing the components of an effective strategy, it is
necessary to briefly outline the requirements of the demolition and
renovation provisions. These provisions are found at 40 CFR Part 61 Subpart
M. The owner / operator of a demolition or renovation is exempt, pursuant
to Section 61.145(b) and (d), from emission reduction requirements if less
than 80 linear meters ( 260 linear feet ) of friable asbestos materials
covering pipes or less than 15 m2 ( 160 ft2 ) of friable asbestos material
covering other facility components is involved, and notification provisions
of Section 61.146(a), (b), and (c)(1)-(5) are met for demolitions.
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Section 61.147 concerns the wetting, stripping and removal of friable
asbestos. It provides that friable asbestos materials used on any pipe,
duct, boiler, tank, reactor, turbine, furnace or structural member shall be
adequately wetted during stripping, and then removed from the building.
When prior authorization is obtained from EPA upon the appropriate
demonstration made pursuant to Section 61.147(c)(1) and (2) of unavoidable
equipment damage, a local exhaust ventilation and collection system may be
used to prevent emissions to the outside air. Section 61.147(e) requires
that stripped or removed asbestos materials be wet during all stages of
demolition or renovation and related handling operations, and Section
61.147(f) allows alternatives to wetting during freezing temperatures.
Section 61.145(c) exempts demolition operations, pursuant to a State or
local order, on structurally unsound buildings from all requirements except
those enumerated in the subsection.
In addition, Section 61.152 prohibits any visible emission from the
collection, packaging, transporting, or depositing of asbestos from any
demolition or renovation, and requires that asbestos waste be deposited at
acceptable waste disposal sites. Section 61.156 prohibits visible emissions
from an active waste disposal site except under specified and limited
conditions. Because of regulatory limitations this strategy concentrates on
asbestos removal operations as opposed to asbestos waste transportation and
disposal. When the asbestos NESHAP is revised to allow for more attention
to asbestos waste disposal requirements, Regions and states should increase
their oversight of those requirements. In the interim the strategy should
include a program of inspecting each disposal site to determine what are the
usual practices with respect to waste handling. After these initial
inspections, perform random multi-day inspections to observe the actual
disposal of waste at each site, and determine who put waste into the
landfill during the period of surveillance so that responsibility could be
assigned to contractors if improper disposal practices are noted at the
landfill.
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Strategy Components
1. Outreach - EPA and the delegated agencies could approach enforcement
of the asbestos NESHAP by devoting resources entirely to catching owners /
operators in the act of violating NESHAP requirements and taking appropriate
enforcement measures. However, enforcement of the NESHAP could be easier
and more effective if it is directed towards a regulated community aware of
EPA requirements rather than a regulated community unsure of those
requirements. By now owners / operators should be familiar with the NESHAP,
but sometimes they could benefit from EPA guidance such as past EPA
applicability determinations.
There are many methods of developing a compliance assistance component
to an enforcement program. A pamphlet containing easy-to-understand
explanations of the regulations and phone numbers of appropriate agency
personnel who can provide further assistance can be distributed to removal
contractors and anyone else concerned with the hazards involved with
asbestos removal. Another way for EPA and delegated agencies to provide
compliance assistance is to meet the regulated community in person.
Seminars and demonstration workshops presented to contractors and owners and
managers of commercial buildings can be greatly effective. In addition,
discussion forums with school district administrators, architects, lenders,
real estate groups, and insurance agency representatives can create a
general public awareness of asbestos hazards and EPA regulatory
requirements. Radio talk shows concerning asbestos hazards will produce the
same effect. EPA's Hazard Abatement Assistance Branch ( HAAB ), formerly
Asbestos Action Program, of the Office of Toxic Substances ( OTS ) offers
technical assistance to the public through training seminars, telephone
contact with the public, guidance documents, and other means which are all
described in APPENDIX L. EPA and the delegated agencies should make a
significant commitment to public education and outreach to create increased
awareness and understanding of the regulations among the regulated community
and an atmosphere of agency-contractor cooperation.
2. Contractor Training - Most states have established some type of
contractor certification or training program for asbestos removal. Further,
the Model Accreditation Plan under the Asbestos Hazard Emergency Response
Act ( AHERA ) requires that all states establish accreditation programs for
persons who inspect, develop management plans, or design or conduct response
actions in schools. APPENDIX I lists the status of the state certification
requirements for all states. States which have not yet adopted
certification requirements for asbestos removal workers may have to make
greater use of the
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outreach methods described in Section 1 to educate contractors as to what
inspectors expect to find at a removal site in order to verify compliance
with the NESHAP. HAAB asbestos removal training is provided by the Office
of Toxic Substances ( OTS ) in response to legislation enacted for the
Asbestos in Schools program. The HAAB training centers and the training
they provide are discussed on pages 4 - 6 of Appendix L. In addition to
providing training on campus, some of these institutions schedule training
sessions at other locations nationwide.
Regions should encourage states to adopt contractor certification
requirements for NESHAP removal activity. Considering that contractors
already need to be certified for removal work under the Asbestos Hazard
Emergency Response Act ( AHERA ), a logical way for states to require
certification under the NESHAP is by expanding the AHERA certification
requirement to all demolition / renovation contractors.
3. Inspector Training - Inspector effectiveness at finding violations
and documenting evidence at subject demolition and renovation sources is the
basis for EPA's asbestos NESHAP enforcement program. The only way to ensure
this effectiveness is to provide inspectors with training on inspection
procedures and safety, and to familiarize them with the NESHAP and other
pertinent regulations. To help accomplish this, SSCD has established the
Asbestos NESHAP Inspection Workshop - a classroom training program available
to the Regions and states. In light of the many changes in EPA asbestos
enforcement since the Inspection Workshop began, SSCD is currently revising
the Workshop Manual and will periodically review and update the revised
manual in the future. This manual should be published in April 1988 for
distribution to the Regions and delegated agencies.
Agencies should also consider sending their asbestos inspectors to one
of the HAAB training centers identified in APPENDIX L so that their
inspectors will be aware of what certified removal contractors are being
taught about complying with the asbestos NESHAP. Because most asbestos
NESHAP inspections are conducted by state and local inspectors, it is
important to encourage the delegated agencies to send their inspectors to
both the SSCD and HAAB training, as well as any contractor certification
training provided at the state level.
4. Inspections - Inspections provide the foundation for all asbestos
NESHAP enforcement actions for substantive violations, and are therefore of
primary importance in enforcing the NESHAP. In most cases, it is necessary
for the inspector to enter active removal areas both to determine compliance
and to collect evidence of any non-compliance.
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The following is a list of positive inspection techniques:
o Bring copies of the NESHAP regulations to the inspection site to
leave with owner / operators and for the inspector's own reference;
o To the extent possible assess the site to be inspected, in
compliance with Section 114 and 4th Amendment requirements, prior
to making your presence known;
o Along with presenting credentials, provide a calling card for
future reference by the facility owner / contractor;
o Clearly identify the line of authority between all parties
involved, i.e., subcontractor, oversight contractor, general
contractor, owner, etc.;
o Use a standard checklist and complete as much information as
possible before entering a contaminated area in order to minimize
the time in the contaminated area;
o In addition to asking the appropriate representative if he or she
is aware of the regulations, ask them to verbally describe their
understanding of the regulation;
o Carry only essential items into the contaminated area, items such
as a clipboard can be left outside;
o Samples should be taken at every site inspected. When samples are
taken, label immediately and log number onto the inspection
checklist and log onto a chain-of-custody form;
o Photograph with waterproof automatic cameras;
o Estimate the amount of asbestos in linear or square feet by pacing
off or using a tape measure;
o Always conduct a quick to-the-point wrap-up meeting and inform the
owner / operator of findings, but do not interpret the regulation
or make compliance determinations;
o To the extent possible reference all discussions to specific
requirements in the regulation being enforced;
o Always wear appropriate safety gear.
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The inspection techniques referred to three items which are especially
important equipment for asbestos NESHAP inspectors - checklist, camera, and
safety gear. This equipment, described below, is considered standard
inspection gear.
a) Checklist - In order to reliably document evidence of compliance
status at each subject worksite, the inspector must enter all
pertinent information onto a reasonably detailed checklist while
the findings of the inspection are fresh in memory. The inspector
should complete as much of the checklist as possible prior to
entering the worksite. So as not to make the checklist an item
requiring decontamination, the inspector should not bring the
checklist inside the removal area, but instead complete the rest of
the checklist entries immediately after conducting the inspection.
A good checklist such as the example shown in Appendix H will
provide the inspector an outline of what to look for during the
inspection. In order to complete checklist the inspector must
enter the removal area. This reflects EPA's policy that inspectors
should, whenever possible, observe asbestos work practices in
progress in order to assess compliance. When the barrier to a
containment area is transparent or when asbestos fibers are
released outside the containment area, it may not be necessary to
enter the removal area to observe work practices. However, because
samples are to be taken during each inspection, it may still be
necessary to enter such a site to collect samples.
If an inspection reveals NESHAP violations, the inspector should
write a report summarizing the inspection and specifying the
conditions unique to the work site which could not be entered onto
the standardized checklist.
b) Camera - Photographing removal activity can provide some of the
strongest evidence of non-compliance. Supplying inspectors with
reliable cameras is necessary to ensure that photographic evidence
will contribute to the agency's cause should a civil action become
necessary. Waterproof automatic cameras are especially useful in
the wet environment found at many removal sites, and will endure
decontamination showers.
c) Safety Gear - EPA's most recent guidance concerning safety gear for
asbestos inspectors is contained in the May 1987 "Interim Health
and Safety Guidelines for EPA Asbestos Inspectors." These
guidelines should be referenced to ensure inspector protection.
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Inspections reported in the computer tracking system outlined in
APPENDIX A and subsequently reported into SPMS must consist of sample
collection and observation of work practices whenever possible. Regional
and delegated agency inspectors should be attentive to the positive
inspection techniques and implement them whenever possible as well. Of
course, if an inspector arrives at an unfinished removal site when no
removal activity is occurring, the inspector will be unable to present
credentials and questions to the appropriate representative, observe work
practices, and conduct a "wrap-up" meeting to inform the owner / operator of
specific violations found, but will still be able to take samples and
photographs and complete a standardized checklist as much as possible. It
may still be possible to make a compliance determination based on the
evidence presented.
5. Inspection Targeting - The number of notifications received by EPA
and the delegated agencies has risen from 20,537 in 1985 to 29,087 in 1986,
and in 1987 this figure rose to 43,496. Because of this tremendous
increase, Regions and their delegated agencies must make more efficient use
of inspectors' time by implementing a targeting system which strategically
identifies which notifications or contractors to follow up with inspections.
The computer tracking system described in Appendix A is designed to
assist agencies in targeting their inspections. The instructions contained
in Appendix A establishes conventions for the input and retrieval of
contractor records, and because the entire inspector targeting method which
follows is based on the use of the computer tracking program, these
instructions should be reviewed carefully. It will be required of all
delegated enforcement agencies to use the tracking program for inspection
targeting. Prioritizing inspections by identifying removal sites where
violations are most likely to occur will enable Regions and their delegated
agencies to make more efficient use of resources. Inspection priority
should be based on a simple evaluation of computer tracking data involving
the assessment of contractor compliance history. Tables 1 and 2 illustrate
this sort of evaluation. Table 1 lists criteria discerned from the computer
system, and criteria found on individual notifications to be prioritized,
and gives numerical ratings for each criteria. By assigning numerical
ratings to the tracking and notification criteria identified in Table 1, the
inspection priority pertaining to each notification received can be
determined by comparing the summation of the ratings to the rankings listed
in Table 2. This evaluation, or a comparable method of evaluation, should
be done for each removal activity to determine the need for inspecting each
work site.
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TABLE 1 Tracking Criteria Rating
Contractor is Listed as Described
in Section 7 of this Document . . . . . . . . . . . . 10.
Contractor Violated at Least Once
During 3 Most Recent Inspections. . . . . . . . . . . 10.
Contractor has Not Been
Inspected for Two Years . . . . . . . . . . . . . . . 10.
Contractor has Not
Been Inspected in past year . . . . . . . . . . . . . 7.
Contractor is Not Certified
by an Approved Accredited Program . . . . . . . . . . 3.
Contractor has a Recent
Trend of Notification Violations. . . . . . . . . . . 7.
Notification Criteria
No Notification Received. . . . . . . . . . . . . . . . 8.
Late Notice Received. . . . . . . . . . . . . . . . . . 6.
Notice Missing Location,
Dates and/or Amount of Asbestos . . . . . . . . . . . 6.
Notice Missing Other Items. . . . . . . . . . . . . . . 4.
Worksite in Occupied Building or
Area of High Population Density . . . . . . . . . . . 5.
TABLE 2 Priority Ranking
TOP Priority 10 or above
HIGH Priority 5 - 9
LOW Priority 0 - 4
An inspection targeting evaluation establishes inspection priority based
on computer tracking data. It does not limit inspections to the criteria
listed in Table 1. Citizen complaints cannot be recorded in the computer
tracking system, but they should be followed up with inspections based on
agency judgment.
Non-Notifiers
In addition to the criteria listed in Table 1, special attention should
be given to removal jobs for which no notification was received. As
documented in the Inspector General's asbestos NESHAP audit report, efforts
to identify non-notifiers should include:
o Checking building permits or public works files;
o Reviewing waste disposal site records;
o Discussing consistent underbidders with national demolition contractors;
o Coordinating with state, county, and city departments of building and
health, and with Federal offices such as OSHA and Department of
Education;
o Reviewing publications such as National Wrecking and Salvage Journal,
newspapers, and magazines.
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Region 3 has researched the problem of identifying non-notifiers and has
documented their findings in a report which has been incorporated as
APPENDIX F. Seven licensing and permitting agencies and several landfills
in Philadelphia, PA and Richmond, VA were visited and record / file reviews
were conducted. In these two cities Region 3 found that reviewing records
( e.g., manifests, contracts ) at the landfills was the most productive
method of identifying non-notifiers.
Because of differing levels of asbestos NESHAP enforcement funding among
delegated agencies, some agencies will be capable of inspecting HIGH and TOP
priority work sites as well as some LOW priority sites, while other agencies
may be limited to inspecting mostly TOP priority sites. When delegated
agencies are finding it increasingly difficult to maintain a high level of
asbestos NESHAP inspections due to funding limitations, they should adopt
cost effective alternative enforcement mechanisms which when combined with
modest inspection levels, will allow these agencies to maintain or enhance
their present enforcement posture. Such alternatives are discussed in the
following section.
6. Program Alternatives - Some states have remarked that maintaining
their established inspection levels is difficult because of many changing
demands being placed on the program. In order to accomodate these states
while maintaining or enhancing their established enforcement posture,
Regions should seek an agreement which includes the incorporation of either
of the following optional requirements into their state enforcement program
coupled with the inspection targeting program outlined previously. When
combined with a penalty policy of sufficient stringency for each violation
type, the adoption of such requirements would be an acceptable state
asbestos NESHAP enforcement program modification.
I. Certification
This alternative entails the adoption of a state-wide contractor
certification program, where the following minimum requirements would
apply:
At least one supervisor certified in asbestos removal shall be present
at each affected NESHAP removal site when removal work is ongoing.
Certification shall be attained only by satisfactory completion of
training at a state-approved training program, one of the EPA-approved
courses identified in APPENDIX L, or any equivalent course. Any state
employing this enforcement alternative shall exercise
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the authority to revoke the certification of any removal contractor
found to be in violation of NESHAP requirements. When a contractor
becomes listed as described in Section 6 of this document, certification
should be revoked automatically. Certification requirements developed
under AHERA, and expanded for all demolition and renovation activities,
would meet this requirement. Each certification training course must
include the following:
a) Education about the hazards of asbestos exposure,
b) Clarification of NESHAP requirements,
c) Training in removal procedures,
d) Training in transportation and disposal procedures,
e) Safety training.
II. Asbestos Manifest
Delegated agencies can implement this alternative by requiring waste
shipment manifests for all asbestos waste shipments from affected
sources. The manifest should be similar in detail and implementation as
the Uniform Hazardous Waste Shipment Manifest ( Appendix C ), but
specifically designated for asbestos containing waste. An asbestos
manifest is a waste tracking form used to verify that asbestos waste is
deposited at an approved waste site. Each removal operator enters
information onto the manifest pertaining to the amount of asbestos
waste, and the designated disposal site, for each waste shipment from a
removal site. The transporter of the waste then acknowledges on the
manifest that he has received the indicated amount of asbestos waste for
shipment to the designated disposal site. Before the transporter hauls
the waste, the removal operator keeps a copy of the manifest indicating
that the transporter has received the waste for shipment to a NESHAP
approved disposal site. When the transporter arrives at the disposal
site, the disposal site operator acknowledges on the manifest that the
asbestos as described by the generator was disposed of at the designated
disposal site. At this point the manifest form is complete. Now, the
original is sent to the delegated agency informing enforcement personnel
that the waste was properly disposed, one copy is sent to the removal
operator indicating regulatory compliance, and the other two copies are
maintained by the transporter and the disposal site operator.
III. Notification Fees
This alternative would require the owner / operator of a removal site to
submit notification with a notification fee in an amount determined by
the amount of asbestos containing material involved in the removal
operation. For instance, if removal entails over 1000 linear feet or
5000 square feet of asbestos containing material, a $500 notification
fee may be required. For removals
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involving less than 1000 linear feet or 5000 square feet but greater
than 260 linear feet or 160 square feet a notification fee of $250 may
be required. If the delegated agency's asbestos removal regulation
covers removal activities that involve levels of asbestos containing
material less than that of EPA's threshold ( 260 linear feet or 160
square feet ), a different fee would be required. By implementing this
alternative delegated agencies can fund a significant level of their
enforcement program depending on the level of fees required.
While these alternatives are not required as a mandatory part of an
acceptable asbestos demolition and renovation enforcement program, they do
represent examples of how state and local agencies can improve their
knowledge of the regulated community. Although these options may have their
own resource demands, implementation of these kinds of activities should
ultimately allow state and local agencies to improve their compliance rates
while maintaining a reasonable resource commitment.
Concurrent with the implementation of one of the above requirements,
states must employ a penalty policy with fines of sufficient stringency for
each violation type in order to achieve an acceptable enforcement
alternative for maintaining enforcement posture when inspection levels
suffer from budgetary restrictions. Enforcement alternatives are to be
aggressively implemented by states seeking cost effective enforcement
methods, and should not have the effect of diminishing the state enforcement
posture. A penalty policy change without implementation is not acceptable.
EPA and states must agree on a minimum acceptable level of state inspections
and vigorous pursuance of violators.
7. Federal Enforcement Options - EPA has the authority to use
administrative and/or judicial enforcement against asbestos NESHAP
violators. Administrative actions may be taken when EPA has the opportunity
to stop noncompliance and establish NESHAP practices. EPA cannot collect
penalties administratively, although several states have that authority.
Regions should encourage states which are able to collect administrative
penalties to do so liberally.
The only way EPA can collect penalties is through judicial action.
Considering that EPA and the delegated states are uncovering increasingly
high numbers of violations, judicial actions taken against violators should
be expected to increase also. However, nationwide, this has not been the
case. The rate of asbestos NESHAP referrals has been relatively stagnant as
the rate of violations uncovered continues to rise substantially. An
intended effect of this strategy is to induce an increased rate of referrals
from the Regions and delegated agencies.
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Figure 1 on page 14 illustrates the various enforcement options.
Choosing the appropriate option for each demolition / renovation source in
violation, for which EPA takes the enforcement prerogative, means using
administrative and/or judicial enforcement action, unless the matter can be
resolved informally or should be referred to OSHA or another EPA program
office.
I. Administrative Actions
EPA can pursue administrative actions through section 113(a)(3) orders
or Section 303 orders, although Section 303 of the Act is seldom used in
asbestos NESHAP enforcement. Notices of Violation ( NOV ) 1/ are often
issued by EPA to NESHAP violators, although NOVs issued by EPA have legal
significance only when issued to violators of State Implementation Plans
( SIP ).
1/ NOV is used here as a generic term to include letter of violation,
finding of violation, notice of deficiency, etc.
Because the CAA does not require the use of NOVs for NESHAP sources, an NOV
issued to a NESHAP source is nothing more than an informal warning.
Section 113(a)(3) orders may be issued to violators when they are found
out of compliance with substantive requirements while removal work is
ongoing. In order to assist the Regions in this procedure, a generic
113(a)(3) order which can be issued in one day is presented in APPENDIX M.
Also included in APPENDIX M is a generic temporary restraining order which
can be used if the situation is considered serious enough. Section
113(a)(3) orders can require immediate compliance, and although EPA cannot
collect penalties with the order, the issuance of a Section 113(a)(3) order
subjects the source to penalty liability in a judicial action under Section
113(b). Section 113(a)(3) orders should also be issued to sources which
continuously submit deficient notifications. Such an order prohibits
further submittal of deficient notifications, and makes the contractor
liable for penalties pursuant to the order as well as the NESHAP itself.
Issuing an NOV in this situation does comparatively little. An example of a
combined Section 113(a)(3) order / Section 114 Information Request is shown
in Appendix D.
II. Judicial Actions
Judicial action under the asbestos NESHAP can take the form of a civil
action as provided for in Section 113(b), or a criminal action as provided
for in Section 113(c). EPA can also pursue a civil action under 303,
however, no Region has done this to date. The September 28, 1987 memorandum
entitled "Procedures for Pre-Referral Settlement of Asbestos Demolition and
Renovation Cases" ( Appendix E ) outlines procedures for negotiated
settlement through judicial consent decree. These procedures are designed
to facilitate
OMITTED TEXT: Figure 1 ( text, p. 14 ).
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the settlement process and enable Regions to increase judicial enforcement
without straining resources.
EPA may bring a Section 113(b) civil action for injunctive relief
requiring compliance with the regulations. EPA may also seek civil
penalties of up to $25,000 per day of violation. EPA's present asbestos
NESHAP penalty policy is shown in Appendix B. Although civil actions under
113(b) do not ordinarily seek immediate injunctive relief, the broad grant
of authority to "commence a civil action for a permanent or temporary
injunction" encompasses temporary restraining orders and preliminary
injunctions. In other words, the Government could proceed under 113(b) to
seek immediate compliance with the asbestos standards, as well as civil
penalties, provided it can satisfy the legal standard for immediate
injunctive relief.
EPA can initiate a Section 113(c) criminal enforcement proceeding when
there is evidence that a person knowingly violated the asbestos demolition
and renovation requirements. A conviction under the criminal provision of
the Clean Air Act can result in imprisonment of up to one year and/or a
penalty of up to $25,000 per day of violation, and greater sanctions are
faced for a subsequent conviction. The effective use of the criminal
provisions can provide a strong message to the regulated community that EPA
does not tolerate blatant disregard for the asbestos NESHAP.
III. Contractor Listing
Another useful enforcement option is contractor listing as described in
40 CFR Section 15.10 - 16. When EPA lists a contractor, that contractor
cannot be awarded any contract to perform work where Federal funds are
involved. Also, a listed contractor cannot be subcontracted to remove
asbestos by another contractor under contract with the federal government to
perform asbestos removal. Contractors convicted of criminal NESHAP
violations under CAA Section 113(c) are automatically listed as provided in
Section 15.10 ( Mandatory Listing ). Under Section 15.11 ( Discretionary
Listing ) EPA can list contractors which have violated a Section 113(a)
administrative order, received any form of civil ruling from any court, or
are the subject of a civil enforcement action from EPA. Additionally, if
any person who owns or supervises a contractor firm is convicted of a
criminal offense by any court, that contractor firm can be listed. Appendix
K is intended to clarify the application of contractor listing. State
certification requirements should require that state certification will be
revoked if a contractor becomes listed.
8. Choosing Enforcement Option - When detected, each violation should be
entered into the computer tracking system described in Appendix A so as to
provide a record of violations listed by contractor. In order to assist in
deciding when these records indicate that a particular enforcement action is
appropriate, the following tables were constructed.
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TABLE 1
Notification Violation Response
No notification 113(a) order.
Submittal of late notification 113(a) order
which is not received in time
to schedule inspection.
Submittal of notification which 113(a) order
is missing dates, location and/or
amounts of asbestos.
Submittal of an incomplete notice */ Enter deficiency
of removal ( Minor violations ) on tracking system.
Continued submittal of incomplete 113(a) order
notifications ( Minor violations ).
Violation of Order Civil Action.
*/ As stated previously, this is done for every violation type.
TABLE 2
Substantive Violations */
Detected during early stages 113(a) Order
of removal.
i) Violation subsequently corrected Consider Civil Action.
ii) Violation continues Civil Action.
iii) Unsure whether or not Issue 114 Information
violation corrected Request and Consider
Civil Action.
Detected after removal or during Issue 113(a) Order
final stages of removal while writing civil
referral package.
*/ Substantive violation is a work practice violation detected during
inspection or from a Section 114 information request response.
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9. Assessing Penalties - The Asbestos Demolition / Renovation Penalty
Policy ( Appendix B ) provides the framework for assessing penalties for
settlement purposes under the asbestos NESHAP. Consistent with the
comprehensive penalty policy, the Region should determine a "preliminary
deterrence amount" by assessing an economic benefit component and a gravity
component. This amount may then be adjusted upward or downward by
consideration of other factors, such as degree of willfulness and/or
negligence, history of noncompliance, and ability to pay. As stated by the
Inspector General's office, when resolving litigated cases contractors
should be required whenever appropriate to provide a list of asbestos
removal jobs for which the contractor did not get the bid, and the names of
the successful contractors. Also, delegated agencies should be required to
document any mitigating factors that result in penalty waivers or
reductions.
10. Reporting - The format for SPMS reporting has been revised. The SPMS
form shown in Appendix G provides the format which will now be required for
SPMS reporting. Violations will be reported in terms of substantive
violations ( work practice violations discovered during inspection or from a
Section 114 information request response ) and notification violations
( late notices, notices lacking dates, location and/or amount of asbestos in
proper units ). Also, the number of sources inspected will be reported.
When reporting the number of referrals, include only those civil and
criminal litigation actions initiated in the same Quarter as the SPMS report
indicates. Collection referrals are not to be included.
Regions must ensure that there is no double-counting of notifications.
The practice of reporting two notifications ( one reported by the Region,
and the other by the delegated agency ) for one removal activity makes it
impossible to correctly assess the number of removal jobs for which
notification was submitted. The number of inspections reported from the
delegated agencies should consist of only those inspections meeting the
criteria for a reportable compliance inspection as described in Section 4 of
this document.
11. Regional Oversight - Regional Offices should implement an oversight
program to ensure that the delegated agencies are performing acceptable
compliance inspections, and resolving violations appropriately. Performing
joint EPA-state inspections is the best method to review delegated agency
inspections and establish the criteria which constitute an acceptable
compliance inspection. Each delegated state's program should be evaluated
to assess inspector training and safety as well. For Regions with both
delegated and undelegated states, Regional inspections should be
concentrated in the undelegated states. Regions should construct written
reviewable inspection programs which incorporate the inspection
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criteria documented in Section 4 of this document as well as the targeting
system established in Section 5 of this document. Regions should also
ensure that delegated states do likewise. A written assessment of each
delegated agency's compliance with grant conditions including the
verification of program results should be made semi-annually by the Regions.
12. Cross-Program Coordination - In addition to being regulated under the
NESHAP program, asbestos is regulated under OSHA provisions, the EPA Toxic
Substances Control Act ( TSCA ) Title I, and TSCA Title II. Under TSCA
Title I, the TSCA Worker Protection Rule regulates any asbestos abatement
work ( removal, encapsulation, or enclosure ) performed by persons employed
by state, county, or local government in those states without an OSHA
delegated program or an EPA approved exempt program. These states are
listed in Appendix J. The Office of Toxic Substances expects to extend
coverage of its Worker Protection Rule to service personnel who, in the
course of operations and maintenance activities, receive exposures
comparable to those experienced by private sector service workers performing
work subject to OSHA.
The OSHA provisions require an 8-hour time-weighted average airborne
employee exposure of not greater than 0.2 fibers per cubic centimeter of
air. Engineering controls, wet methods, respirators and special clothing
are required. The Worker Protection Rule imposes the same major
requirements of the OSHA provisions, but differs in that the Worker
Protection Rule applies solely to activities involved in asbestos abatement,
in contrast to the OSHA standard which applies generally to any construction
activity involving exposure to asbestos. NESHAP inspectors can help OSHA's
enforcement efforts by reporting the absence of require OSHA safety measures
at inspected NESHAP removal sites. To help implement such an effort the
standardized NESHAP inspection checklist ( Appendix H ) has a section for
recording the presence or absence of required OSHA measures. When the
negligence of OSHA requirements are noted by NESHAP inspectors, OSHA should
be notified as soon as possible. When the negligence of OSHA requirements
are observed at a NESHAP site where removal work is being done by state or
local government employees at one of the states listed in Appendix J, in
addition to notifying OSHA, the inspector should ensure that the TSCA
Regional Asbestos Coordinator ( RAC ) is notified as well for possible
violations of the Worker Protection Rule.
Under TSCA Title II, the Asbestos Hazard Emergency Response Act
( AHERA ) requires local educational agencies ( LEAs ) to inspect school
buildings for asbestos containing material, and develop and implement
managerial plans. Persons designing and conducting response actions ( i.e.,
removal, encapsulation, enclosure, or repair ) in a school building must be
accredited under AHERA for that activity.
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EPA NESHAP and TSCA programs in the Regions should be coordinated to
maximize information collection and sharing, consolidate compliance
assistance efforts, and unify enforcement activities among all the Agency's
asbestos programs. Pilot programs should be initiated to formally or
informally coordinate NESHAP and TSCA activities in the field. In Region
VII, a full-time technical assistant under the Senior Environmental
Employment program of the American Association of Retired Persons ( AARP )
acts as liaison between NESHAP and TSCA efforts. In Region X, the NESHAP
coordinator and the TSCA RAC voluntarily coordinate program activities to
maximize resources and provide a more unified presence to the affected
public.
When a NESHAP inspector inspects a renovation taking place at a school,
the inspector should ascertain whether or not site supervisors and removal
workers are accredited under the EPA Model Plan required by AHERA. If AHERA
accreditation requirements have not been met, this should be reported to the
TSCA RAC. Considering that most TSCA inspections are performed by AARP
personnel who are restricted from entering removal sites when work is
ongoing, TSCA can benefit greatly from any pertinent information obtained by
the observations of NESHAP inspectors inside the removal area. If the TSCA
program develops a pamphlet describing AHERA record-keeping and clearing
response action requirements, NESHAP inspectors can hand these out at
schools they inspect. NESHAP inspectors can also verify if transportation
and disposal of asbestos wastes from these schools is in accordance with
NESHAP / DOT requirements. Also, NESHAP personnel should inform the TSCA
section when a notification is received from a school.
EPA TSCA inspectors should notify the NESHAP Regional Asbestos
Coordinator ( RAC ) whenever apparent violations of wetting, bagging, no
visible emissions, and/or disposal requirements at NESHAP removal sites are
observed by their inspectors. TSCA inspectors can also provide the NESHAP
RAC with a list of known removals based on records inspections. OSHA
inspectors should also notify the NESHAP RAC when potential NESHAP
violations are observed.
As members of the Federal Asbestos Task Force established in June 1983,
EPA and OSHA are mandated to develop a unified federal approach for the
regulation of asbestos. The preceding coordination recommendations are
examples of objectives which should be agreed to in writing by the EPA
offices and OSHA to memorialize that this type of cooperation will take
place.
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