Enforcement and Inspection

NESHAP and Asbestos Enforcement

In a recent enforcement case, the owner of a demolition company was sentenced to 33 months in prison and ordered to pay $7.8 million in restitution for failing to remove asbestos before demolishing a former factory in Cleveland. The alleged criminal action violated the Clean Air Act’s (CAA) National Emissions Standards for Hazardous Air Pollutants (NESHAP) governing asbestos, and the case highlights the continued challenge of complying with one of the most broadly applicable CAA rules.

Noncompliance Penalties Are Severe

In 1973, the EPA issued the asbestos NESHAP, making the substance one of the first regulated under CAA’s air toxics program.  The Agency has amended the asbestos NESHAP several times, most comprehensively in 1990.  Despite its longevity and the fact that asbestos is, arguably, the best known hazardous air pollutant (HAP), the asbestos NESHAP is chronically among the most commonly violated CAA regulations.  Such violations often occur in disadvantaged communities where the impact on lower-income people can be particularly harsh. For this reason, intentional violations that spew asbestos into the ambient air are sometimes punished with jail time.

Nontechnical But Labor-Intensive

An irony of noncompliance is that the asbestos NESHAP is one of the least technically complex NESHAPs. For example, numerical emissions limits do not have to be met; therefore, removing regulated asbestos-containing material (RACM) from a structure before demolition or renovation does not require the purchase and installation of pollution control and monitoring equipment, as is the case with other NESHAPs. Rather, the NESHAP consists of work practice standards, mainly the requirement to remove friable asbestos from a structure before demolition or renovation.  The requirements also apply to any asbestos that may become friable during demolition or renovation.

But the absence of sophisticated equipment in asbestos removal does not mean that compliance is a simple matter. Asbestos removal can be labor-intensive, time-consuming, and costly.  Furthermore, while asbestos is not a Resource Conservation and Recovery Act (RCRA) hazardous waste, federal regulations do impose restrictions on its disposal (e.g., no visible emissions to the outside air where asbestos-containing waste material has been deposited).  Also, some states include asbestos waste in their lists of hazardous waste, which activates additional state requirements.  All this can add up in terms of compliance cost.  For example, in the Cleveland case, the cost to remove asbestos from the 570,000-square-foot (sq ft) facility was estimated at $1.5 million.

A Job for Professionals

The asbestos NESHAP at 40 CFR 62.140 occupies 34 pages; this is not a regulation that can be read and grasped during a coffee break. When coupled with any additional state requirements, it becomes clear that compliance with the asbestos NESHAP should be entrusted to environmental professionals and trained workers, particularly for larger projects and most especially when people live or work nearby.

As you embark on your understanding of federal and state asbestos regulations, here are a few overarching points taken from a 2012 EPA memo on rules and regulations regarding the demolition of asbestos-containing structures:

  • Facilities covered by the NESHAP are any institutional, commercial, public, industrial, or residential structure, installation, or building. Residential buildings with four or fewer dwelling units are excluded from the NESHAP unless the residential building is part of a project that also demolishes any institutional, commercial, public, or industrial structure, installation, or building or demolishes a total of more than four residential dwelling units.
  • RACM generally includes any asbestos-containing material (ACM) that contains more than 1 percent asbestos that is friable (i.e., able to be crumbled by hand when dry) or has the potential to become friable and release asbestos during demolition.
  • The NESHAP must be complied with if the combined amount of RACM in the facility is at least 260 linear ft on pipes; at least 160 sq ft on other facility components; or the total volume of RACM is at least 35 cubic ft.

All RACM must be removed before a demolition begins except where:

  • The material is Category I nonfriable ACM that is not in poor condition and is not friable.
  • The material is encased in concrete or similar material and is adequately wet whenever exposed during demolition.
  • The material was inaccessible during testing and once discovered could not be safely removed.
  • The material is Category II nonfriable ACM and has a low probability of becoming pulverized, crumbled, or reduced to powder during demolition.

Category I nonfriable ACM means asbestos-containing packings, gaskets, resilient floor covering, and asphalt roofing products containing more than 1 percent asbestos.

Category II nonfriable ACM means any material, excluding Category I nonfriable ACM, containing more than 1 percent asbestos that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.

EPA’s memo is at https://www.epa.gov/sites/production/files/documents/nps5da.pdf.

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