06/30/88
Asbestos Contractor Listing
MEMORANDUM JUN 30, 1988
SUBJECT: Asbestos Contractor Listing
FROM: /s/ John S. Seitz, Director
Stationary Source Compliance Division
Office of Air Quality Planning and Standards
TO: James T. Wilburn
Deputy Director
Air, Pesticides and Toxics Management Division
Region IV
I am writing in response to your April 1, 1988 memo about the asbestos
contractor listing policy. You raised the concern that an asbestos
contractor may not remain in violation for long enough to be listed, or may
not stay listed for very long since a contractor can petition for de-listing
upon demonstration of compliance. You pointed out that most asbestos
violations are short lived. Since other air compliance staff may share your
concern, I am sending copies of this response to all air management division
directors.
We discussed this problem in developing the new asbestos contractor
listing policy. We believe that the short duration of most violations will
not preclude EPA from using the contractor listing sanction effectively
against those companies which have repeated violations. Under 40 CFR
Section 15.11 EPA may place a facility on the list if EPA "determines that
there is a record of continuing or recurring noncompliance with clean air
( or water ) standards. . ." ( emphasis added ).
If the facility violating the NESHAP is an asbestos demolition and
renovation ( D&R ) company, then the "facility" to be listed is that
asbestos D&R company. Contractor listing is an appropriate sanction to use
against asbestos D&R companies with a history of several violations over a
period of time.
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These violations may be at different demolition sites, as long as the same
company "facility" is responsible for the violations. 1/
1/ For a more complete discussion defining asbestos D&R company
"facility", see "Defining `Violating Facility' for the Purpose of
Listing Asbestos Demolition and Renovation Companies," March 11, 1988 at
11-13.
Such a company has a "record of recurring noncompliance" for the purposes of
a listing action.
If an asbestos company has been placed on the list in a discretionary
listing action and then petitions to be removed from the list, Section 15.21
requires the Listing Official to remove the facility from the list if the
Assistant Administrator has determined that "the conditions(s) which gave
rise to the discretionary listing have been corrected" or "the facility is
on a plan for compliance which will insure that the condition(s) which gave
rise to the discretionary listing will be corrected." The Office of
Enforcement and Compliance Monitoring has issued a policy about what
constitutes "correcting the condition giving rise to listing". 2/
2/ "Policy on Correcting the Condition Giving Rise to Listing under the
Contractor Listing Program", Attachment WW to the Contractor Listing
Protocols, October 8, 1987.
In the case of an asbestos D&R company which has repeatedly violated the
asbestos NESHAP, we would not consider that the company had demonstrated
that it had "corrected the condition giving rise to the listing" merely by
sending proper notice on its next job and/or using proper work practices the
next time an inspector visits the site. One day or moment of compliance is
no guarantee that the contractor will be in compliance the next day or
moment nor does it guarantee correction of the conditions giving rise to the
listing. Where there have been recurring violations in the past, EPA should
require the company to demonstrate that it has taken adequate steps to
ensure that violations do not occur in the future.
To illustrate this point, consider a power plant that may have repeated,
but not continuous, particulate violations. The compliance provisions of a
consent decree for a power plant might require that the company install an
ESP or baghouse and, in addition, require that certain operation and
maintenance measures be taken and that quarterly reports of CEM data be
submitted to EPA to demonstrate that the power plant is now operating in
continuous compliance with the standard.
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Similarly, with an asbestos D&R company, we should require a
demonstration that steps have been taken to ensure that the systemic
problems which caused recurring violations have been solved. Depending on
the particular requirements of the asbestos NESHAP that the company has been
violating, EPA could require the asbestos D&R company to do one more of the
following:
* Institute new office procedures which assure that the required
notices are sent out on time. Demonstrate that this has been done
by maintaining records of all notices which have been sent and
agree to an EPA audit of these records.
* Develop or have developed a written asbestos control program such
as the one in the attached model consent decree provision II.
* Develop and implement a training program for asbestos D&R workers,
and have every worker ( including managers ) take the training
course. Keep records of which workers have taken the course.
* Demonstrate to EPA that the company has the equipment needed to
comply with the NESHAP regulations, such as water tank trucks with
hoses and spray equipment and metal drums for storing and disposing
of asbestos.
Attached is a model consent decree with the language and programs we suggest
to demonstrate compliance. If you have any suggestions for improvements, we
would welcome them.
A discretionary listing action always has a prerequisite enforcement
action. If the defendant and EPA have agreed to the terms of a consent
decree which incorporates the needed remedies before the company is listed,
the recommending Regional office may withdraw the Recommendation to List.
Once a company has been notified of a proposed listing, a listing action is
resolved only by a determination that the conditions giving rise to the
listing have been corrected.
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This determination may be based on a certification by the Regional program
office that the facility has taken all necessary remedial action and is now
in compliance, or it may be based on a signed consent decree which obligates
the company to take the needed remedial action in the future.
I hope this discussion has addressed your concerns. If you still have
some questions about the asbestos D&R company listing program, you may want
to talk to Tracy Gipson in the Contractor Listing Program ( FTS 475-8780 )
or Charlie Garlow or Justina Fugh in the Air Enforcement Division ( FTS 475-
7088 or 382-2864 ).
Attachments
Policy on Correcting the Condition Giving Rise to Listing under the
Contractor Listing Program
Model Consent Decree Provisions
cc: Air and Waste Management Division Director
Region II
Air Management Division Directors
Regions I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
OMITTED TEXT: Attachment 1 - Attachment WW to the Contractor Listing
Protocols - Accessible under document number CAA;CWA;GEP;PG227
ATTACHMENT 2
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. )
)
AMALGAMATED PROPERTY OWNERS, ) Civil Action No.
)
INC. and )
)
XYZ DEMOLITION CONTRACTORS, INC., )
)
Defendants )
_______________________________________)
CONSENT DECREE
Plaintiff, United States of America, on behalf of the United States
Environmental Protection Agency ( "EPA" ), having filed a Complaint alleging
violations of the National Emission Standard for Hazardous Air Pollutants
( "NESHAP" ) for asbestos, codified at 40 CFR Section 61.140 et seq., and
the Clean Air Act, 42 USC Section 7401 et seq., and requesting permanent
injunctive relief and civil penalties;
And Defendant having duly filed an Answer denying the claims of the
plaintiff; ( if appropriate )
And Plaintiff and Defendant having agreed that settlement of this action
is in the public interest and that entry of this Consent Decree without
further litigation is the most appropriate means of resolving this action
and thus avoiding protracted litigation costs and expenses;
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And Plaintiff and Defendant having moved this Court to enter this
Consent Decree, subject to the provisions of 28 CFR Section 50.7;
NOW THEREFORE, before the taking of any testimony, upon the pleadings,
without adjudication of any issue of fact or law with no finding or
admission of liability against or by the Defendant, and upon consent of the
parties to this Consent Decree, it is hereby Ordered, Adjudged, and Decreed
as follows:
I.
JURISDICTION
This Court has jurisdiction over the subject matter of this action under
28 USC Sections 1331, 1345, and 1355, and 42 USC Section 7413(b) and over
the parties consenting to this Consent Decree. Venue is proper in this
Court. The Complaint states a claim upon which relief may be granted
against the Defendant.
II.
DEFINITIONS AND PARTIES
A. "Defendants" shall mean Amalgamated Property Owners, Inc., and XYZ
Demolition Contractors, Inc.
B. "Plaintiff" shall mean the United States of America and the United
States Environmental Protection Agency.
C. Terms used in this Consent Decree which are defined in 42 USC
Section 7412(a), 42 USC Section 7602, 40 CFR Section 61.02, and CFR Section
61.141 shall have the meanings contained therein.
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D. Defendant Amalgamated Property Owners, Inc. ( APO ) is a corporation
organized under the laws of the State of Delaware. APO owns property in
several states, including the facility identified in the Complaint in this
action.
E. Defendant XYZ Demolition Contractors, Inc. ( XYZ ) is a corporation
organized under the laws of the State of Louisiana. The company is engaged
in the business of demolition throughout various states including Louisiana.
XYZ "operated" the facility identified in the Complaint in that XYZ
performed demolition activities at the site.
F. Defendants are "persons" within the meaning of Section 302(e) of the
Clean Air Act, 42 USC Section 7602(e).
III.
APPLICABILITY
A. The undersigned representatives of each party to this Consent Decree
certifies that he or she is fully authorized by each party whom he or she
represents to enter into the terms and conditions of this Decree, and to
execute and legally bind that party to it.
B. The provisions of this Consent Decree shall apply to and be binding
upon the Defendants, as well as their officers, directors, agents, servants,
employees, successors, and assigns, and all persons, firms and corporations
having notice of this Consent Decree and who are, or will be, acting
pursuant to this Consent Decree, or on behalf of, in concert with or in
participation with the Defendant to this action in furtherance of this
Decree.
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C. The provisions of this Consent Decree shall apply to all of
Defendant APO's facilities in all states, territories, and possessions of
the United States of America.
D. The provisions of this Consent Decree shall apply to all of
Defendant XYZ's demolitions or renovations in all states, territories, and
possessions of the United States of America.
E. Defendants shall condition any and all contracts for demolitions or
renovations subject to this Decree during its effective period on compliance
with the terms of this Decree.
IV.
ALLEGATIONS
A. Plaintiff alleged that APO hired XYZ to demolish a scotch tape store
at 1000 Main Street in Plain Dealing, Louisiana. The facility contained in
excess of 80 linear meters of friable asbestos material as defined in 40 CFR
Section 61.141, and therefore the demolition operation was subject to the
asbestos NESHAP, 40 CFR Section 61.140 et seq.
B. Plaintiff alleged that XYZ commenced demolition of the facility on
or about March 17, 1987, without either Defendant having submitted notice of
the operation to EPA, in violation of 40 CFR Section 61.146. Plaintiff
further alleged that the Defendants failed to comply with certain work
practice requirements set forth in 40 CFR Section 61.147 and 61.152.
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V.
COMPLIANCE PROGRAM
A. Defendants shall comply with the requirements of the National
Emission Standards for Hazardous Air Pollutants ( NESHAP ) for asbestos in
40 CFR Section 61.140 et seq. Defendants shall submit written notification
for demolition or renovation operations to be postmarked or delivered at
least ten (10) days before each demolition or renovation begins if the
amount of asbestos is as stated in 40 CFR Section 61.145(a), or at least
twenty (20) days before each demolition or renovation begins if the amount
of asbestos is as stated in 40 CFR Section 61.145(b).
B. In the case of an emergency renovation as defined in 40 CFR Section
61.141, Defendants shall provide written notice to the appropriate EPA
regional office and the appropriate delegated state or local air pollution
control agency as early as possible prior to the commencement of any
renovation operation involving asbestos. ( Optional )
C. Defendant XYZ shall, on and after the date of entry of the Consent
Decree, implement the office procedure set forth as Attachment 1 to this
Consent Decree to ensure compliance with the notice requirements for
demolition and renovation operations subject to the asbestos regulations,
and shall use the notification format set forth as Attachments 2 and 3 to
comply with this Consent Decree. ( Optional, but suggested if there have
been notice violations. )
D. All notifications required by this Consent Decree shall be sent by
certified mail or hand delivery to the appropriate EPA Regional office and
the appropriate delegated state or local air pollution control agency.
Defendants shall maintain records of said notifications together with proof
of mailing by certified mail for the duration of this Decree.
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E. This Consent Decree in no way affects the Defendants's
responsibility to comply with any State, Federal or local laws or
regulations or any Order by the Court, including compliance with all
applicable NESHAPS requirements, and enforcement of any such NESHAP
requirements made applicable by reason of any revision of the Clean Air Act
and its implementing regulations.
( Optional provisions. Sections II ( Notification ), III ( Asbestos
Control Program ), and IV ( Asbestos Training Program ) of the Geppert
decree, attached, are recommended as targets for settlement with contractors
where appropriate, such as multiple violations or situations in which the
contractor has a large number of work crews and inadequate centralized
management of them. )
VI.
CIVIL PENALTY
Defendants shall pay a total civil penalty ( penalty in accord with
penalty policy ). Said payment shall be in full satisfaction of Plaintiff's
claims alleged in the Complaint in this action. Payment shall be made by
cashier's or certified check payable to "Treasurer of the United States of
America" and tendered within 30 days after final entry of this Decree to the
United States Attorney for the Middle District of Louisiana, ( Address ).
Defendants shall send a copy of the check to the Office of Regional Counsel
( Address ), and to the Land and Natural Resources Division, US Department
of Justice ( Address ). Civil penalty payments under this decree are not
tax deductible.
( Optional provisions. Sections VI.B, VI.C, VIII, and IX of the PC&J
decree, attached, are recommended if it is necessary to provide for an
installment schedule for payment of civil penalties, particularly if there
is any concern about the solvency of the defendant. )
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VII.
CONTRACTOR DEBARMENT AND SUSPENSION
( Optional provision. Section VII of the PC&J decree, attached, may be
a useful negotiating tool against contractors which do business with the
Federal government. However, the Office of Inspector General, Suspension
and Debarment Branch (FTS 475-8960) should be consulted prior to making any
commitments regarding suspension or debarment proceedings. )
VIII.
STIPULATED PENALTIES
( Applicable to items other than violations of the regulations, such as the
training program or asbestos control program in Geppert decree. )
A. Defendant XYZ shall pay stipulated penalties of $1,000 per day for
each day of noncompliance with any provision of Sections __ of this Consent
Decree.
B. All payments of stipulated penalties shall be made within thirty
(30) days of the date of noncompliance by cashier's or certified check made
payable to the "Treasurer of the United States" and mailed to the United
States Attorney for the Middle District of Louisiana. A copy of the letter
forwarding such check, together with a brief description of the
noncompliance, shall be mailed to the Office of Regional Counsel, EPA Region
VI, and to the Land and Natural Resources Division, US Department of
Justice.
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C. Nothing contained herein shall be construed to prevent or limit the
rights of the plaintiff to obtain any other remedy, sanction, or relief
which may be available to it by virtue of Defendant's failure to comply with
this Consent Decree, the Clean Air Act, or the asbestos NESHAP.
IX.
FORCE MAJEURE
( Optional - may be inserted if demanded by Defendants. Section IX of the
Geppert decree, attached, is recommended. )
X.
TERMINATION
This Consent Decree shall terminate 3 years from the date of its entry,
provided the Defendant has complied with its terms. The United States shall
have the right to seek extension of this period in the event of any
violation of the Decree. The Court will retain jurisdiction over this
matter to enforce the provisions of this Decree.
XI.
PUBLIC NOTICE
Each party consents to entry of this Consent Decree, subject to the
public notice and comment requirements of 28 CFR Section 50.7.
XII.
COSTS
Each party shall bear its own costs.
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For Plaintiff - United States of America:
Not signed
F. HENRY HABICHT II
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
Not signed
THOMAS L. ADAMS, JR.
Assistant Administrator for
Enforcement and Compliance Monitoring
United States Environmental Protection Agency
Assistant United States Attorney
Middle District of Louisiana
Trial Attorney
Land and Natural Resources Division
Environmental Enforcement Section
United States Department of Justice
For Defendant XYZ Demolition
Contractors, Inc.
For Defendant Amalgamated Property
Owners, Inc.
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ENTRY OF THE COURT
Judgment entered in accordance with the foregoing Consent Decree this __
day of ___________, 1987.
BY THE COURT:
United States District Judge
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