Document YDb6Mzdx646rovXNoYyNmrMkn

FILE NAME: Marley (MAR) DATE: 1989 Sept 19 DOC#: MAR019 DOCUMENT DESCRIPTION: Memo with Published Article from Environmental Reporter Tine M A R L E Y C o m p a n y Inter-Office Correspondence To : Tom Kroehle 'MCC - Mission From: Terry A. Hart Corporate Safety Manager Subject: EPA Asbestos Enforcement cc: Gary Wilson, MCTC - Mission Mike Vessels, MCTC - Mission Tom Burchett, Marley Corporate Bob Best, Marley Corporate Bob Wrobel, Marley Corporate Tom - I was reviewing the latest releases of "Environmental Reporter" and the "Air and Water Pollution Control" newsletter when I noticed the attached articles. I feel it's important that you be aware that the EPA is beefing up its enforcement of the NESHAP requirements. We need to evaluate our asbestos removal procedures thoroughly to be sure we meet the "no visible emissions" requirement. This is for your information. Regards, 728 ENVIRONMENT REPORTER wastes may be there as required under NEPA, and under federal and state hazardous waste and water pollution con trol regulations. However, according to preliminary data, PCBs are present in one area at 77.1 parts per million. Soil contaminated with more than 50 ppm must be disposed of in an approved facility, the agency said. FHWA's lack of ground water and storm water data limits EPA's evaluation of the project subject to the National Pollutant Discharge Elimination System under the Clean Water Act, the agency said. "Though we acknowledge that the project may have inher ent benefits, we remain concerned about the review process that directly or indirectly shortcuts the requirements of NEPA," the agency said. Comments On Draft Statements EPA said it needs more information on noise and wetlands mitigation plans, and water quality and fishery impacts from the Federal Highway Administration in its plan for U.S. 30/Columbia River Highway improvements, Columbia Coun ty, Ore. (D-FHW-L40170-OR). EPA said it has no objections to the Department Of Ener gy's plan to decommission eight surplus plutonium produc tion reactors at DOE's Hanford facility, Richland, Wash. (D- DQE-L00003-WA). EPA said the U.S. Army Corps of Engineers' plan for Sandstone Dam and Reservoir construction, Savery Creek, Carbon County, Wyo., does not comply with the National Environmental Policy Act or the Clean Water Act and could result in damage to the aquatic ecosystem (DS-COE-J28017- WY). . ;,= Comments On Final Statements EPA asked FHWA to further clarify its alternative analy sis, land use plans, water quality impacts,, and secondary uses in its plan for the Danville Expressway completion, U.S. 58 to U.S. 29, Pittsylvania County, Va. (F-FHW-D40219-VA). EPA said it has no objections to FHWA's plans for U.S. 67 bypass construction in Johnson County, Texas (F-FHWG40119-TX). EPA said it was not necessary to review the Bureau of Land Management's final EIS for geothermal wellfield devel opment and power plant construction and operation, Inyo National Forest, Mono County, Calif. (F-BLM-K01006-CA). EPA said FHWA must commit to plans in its draft EIS to mitigate all wetlands and endangered species impacts for State Route 76, Oceanside, Calif. (F-FHW-K40063-CA). For more information, contact the EPA Office of Federal Activities at (202) 382-5076. ENFORCEMENT Civil Enforcement EPA FILES 13 ASBESTOS NESHAP LAWSUITS, ANNOUNCES NEW ENFORCEMENT POLICY ADOPTION Thirteen lawsuits in 11 States were filed by the Justice Department on behalf of the Environmental Protection Agen cy Aug. 22 in a "coast-to-eoast effort" to signal improved enforcement of federal asbestos regulations for buildings that are being renovated or demolished. EPA also announced that it has adopted a new policy for enforcing asbestos regulations that establishes fines as much as five times higher than those previously imposed on violators. In addition, EPA said it used for the first time its discre tionary authority to bar two abatement contractors with records of serious asbestos violations from receiving any federal funds. The series of civil enforcement suits filed by EPA and the Department of Justice named as defendants 34 institutions, companies, and Individuals, including the New York City Board of Education. The defendants were charged with as bestos violations dating back to 1984. The cases alleged violations of the federal asbestos stand ard established under the Clean Air Act's National Emissions Standards for Hazardous Air Pollutants. The asbestos NESHAP requires EPA or designated state or local authori ties to be notified of all renovation or demolition jobs involv ing asbestos. Proper work practices--including wetting and bagging asbestos to prevent exposure--must be followed whenever more than a minimum amount of the substance is involved. The asbestos NESHAP also sets rules for proper transport and disposal of asbestos materials removed from a building. Both contractors and building owners are responsible for complying with the asbestos NESHAP. EPA estimated that more than 100,000 renovation and demolition jobs involving asbestos are undertaken in the United States every year. As many as half of these projects yiolate the asbestos NESHAP, the agency said, . Agency officials have acknowledged that, faced with over whelming numbers of projects covered by the rules, it has done a poor, job of enforcing the asbestos NESHAP. An EPA inspector general's report completed last year concluded that the agency had poor oversight of delegated activities, inad equate inspections, and penalties that were "almost non existent because of a generally lax attitude toward penalizing violators" of the NESHAP. 1988 Hearing Focuses On Enforcement The inspector general's report was presented during a June 1988 oversight hearing by the House Government Operations Subcommittee on Environment, Energy and Natural Re sources. The subcommittee chairman, Rep. Michael L. Synar (D-Okla), said EPA lacked the resources and staff to enforce the asbestos rules or oversee state and local agencies with enforcement powers. Synar presented EPA documents show ing there were only 48 part-time EPA inspectors to enforce NESHAP rules and only 53 full-time and 538 part-time state inspectors. The number of inspectors was slated to increase modestly this year. EPA officials said at the hearing and subsequently that they would seek changes in the agency's enforcement and penalty policies to improve NESHAP compliance. Among the results of these moves were the enforcement cases and the new enforcement policy announced Aug. 22. The enforcement cases involve some of the larger or more widely reported asbestos-release incidents that have oc curred in the last few years. Cases were filed in nearly all of EPA's 10 regions. Among the defendants was. the New York City Board of Education, which was cited for more than 80 renovation projects that took place from 1984 to 1987 allegedly without notifying authorities as required by the asbestos NESHAP (U.S. v. New York City Board o f Education, DC ENY). In another case, EPA charged defendants that were alleg edly responsible for asbestos insulation that dropped from the 8-25-89 Copyright 1989 by The Bureau of National Affairs. Inc., Washington, D.C. 0013-9211/89/S0+ .50 MARDEP000408 CUfPft*?r DEVELOPMENTS sjfv >h-am Jose, Calif., when wine tanks were removed from a Wlne- .>if helicopter (U.S. v. Brown, DC NCalif). T V saer cases filed involve asbestos removal at schools, g0Vo--uaait buildings, or privately owned buildings. They are i a . 5 x' S * jS ; - S t rS Marine Associates Inc. (DC EPa); r G & E rie Associates (DC EPa); r Wayne Insulation Co. (DC EVa); r K im m ins Environm ental Services (DC MFla); r. Illinois Asbestos Control Inc. (DC NI11); r. N.E. Walsh Construction (DC NOhio); r. B & B W recking and E xcavating Co. (DC NOlr'-"1 * i S. c. AA Mactal Construction Co. (DC Kan); j S. v. MPM Contractors (DC Kan); * S. v. Cal N eva Lodge Inc. (DC Nev); and 'S . r . Savage E nterprises Inc. (DC WWash). EpA used the filings to highlight the changes it said it will in its enforcement policy. Because of low compliance with ihe NESHAP, EPA said the agency, state and local anttwrities, and the Justice Department have made a "concepj+ated commitment to initiate judicial enforcement agajpst violators." Enforcement authorities have developed a system for re viewing renovation and demolition jobs throughout the coun try fey reviewing license applications, bid requests, and land fill fpcords. The number of NESHAP inspections have jjjc r^ se d from 8,133 in 1985 to 20,275 in 1988, EPA said. The umrtfjer of civil enforcement actions initiated by state and fetter^ authorities grew to 106 in 1988 from 49 in 1985. Sevefgl criminal cases have also been filed against NESHAP violafprs, the agency said. Tyrrell E. Hunt, associate enforcement counsel for air programs in EPA's enforcement office, told BNA Aug. 23 that tbe enforcement initiative was not motivated by past criti cism pf the asbestos enforcement program. He said that the program has been successful for some time. Hufit said that the suits, combined with the new penalty policy. W>H increase deterrence and make limited agency resources go farther. "The costs of mismanaging asbestos wastps just went up," Hunt said, adding that landlords and buildihg owners will be held responsible, along with contrac tors. ffhen removal actions do not adhere to EPA reporting aud gsbestos handling regulations. In addition, each violation of a management practice con stitute5 its own violation now, whereas multiple violations w erg pften treated as one offense in the past, according to Hunt Penalties will add up much faster using this approach, he sa^ A highlight of the new enforcement policy is an increase in the fTPoimum amount of fines that will be sought from jqESfJAP violators. The Air Act authorizes fines of up to $25,0btf per violation per day, but actual assessments have been far lower. EPA said it would begin to assess fines based on cy&s avoided by violators in refusing to follow the strin gent ivESHAP requirements for asbestos removal and dispt1*8^PrfiFaously the agency had used a "rule of thumb" of $4 per squaftf foot or linear foot to estimate the costs avoided by jyjEStfAP violators in improper removal jobs. The agency vrill calculate fines based on $20 per foot of asbestos ujatgimals involved, EPA said. The new figure was arrived at throcET surveys and interviews in the abatement industry, EPA dedicated- The agency said penalties will also take into accct>n such other factors as the "gravity" of the offense in te r m * ^ environmental damage and the previous compliance histof? 'of the defendant. 729 EPA also said it is going ahead with a previously an nounced policy to place serious NESHAP offenders on a list of facilities and companies barred from receiving federal con tracts or money provided by a federal grant or loan. The agency has discretionary authority under the Air Act to use this listing procedure for civil violators of the asbestos rules. Those convicted of criminal violations are automatically listed. Enforcement EPA, DOJ ENFORCEMENT AT MARINE SHALE UNDER INVESTIGATION BY HOUSE SUBCOMMITTEE The federal government's enforcement of environmental laws at Marine Shale Processors Inc., will be the subject of hearings of the House Government Operations Subcommittee on Environment, Energy, and Natural Resources, a subcom mittee aide told BNA Aug. 21. Another government source told BNA Aug. 22 that the subcommittee has written Department of Justice officials asking them to explain how the Environmental Protection Agency and DOJ handled a recent investigation and prosecu tion of Marine Shale. The subcommittee seeks to compare the Marine Shale case with other criminal investigations in EPA's Region VI since 1985, according to the source. The letter also expressed dissatisfaction with a DOJ re sponse to an earlier request for information on the investiga tion and prosecution of the case, the source added. A staff aide to the subcommittee said hearings will be held in the autumn concerning EPA's enforcement and oversight at the Amelia, La., hazardous waste processing facility. The aide confirmed that the subcommittee had sent a letter to DOJ asking for information about EPA's and DOJ's respec tive roles in investigating and prosecuting Marine Shale. The aide would not explain the contents of the subcommittee's most recent request for information from DOJ on the Marine Shale investigation. However, the government source provided BNA with back ground and details of the letter. The source indicated that Rep. Michael L. Synar (D-Okla), chairman of the subcommit tee, sent DOJ the letter because questions in an earlier request for information went largely unanswered. July Letter's Response Insufficient The government source said the subcommittee sent a letter to DOJ in early July asking officials to explain what DOJ and EPA were doing to resolve an ongoing dispute over Marine Shale's operations, which were alleged to be in violation of the Resource Conservation and Recovery Act and other environmental laws. The letter also asked the department to explain what civil enforcement actions had occurred during the three-year criminal investigation of the company, accord ing to the source. DOJ responded by sending the subcommittee a copy of the press release and the plea agreement entered July 24 and a letter explaining that DOJ felt the agreement was an appro priate resolution of the criminal investigation, tbe source said. Synar objected to the response and then sent DOJ the second letter to clarify its request. That letter asked the department to justify how it has handled criminal matters in EPA Region VI since 1985 for the purpose of seeing how DOJ and EPA conducted the criminal prosecution of Marine Shale as compared to other investigations, according to the government source. The let ter asked DOJ to explain its case management in the region and chided the department for not properly responding to the earlier letter, the source said. fr-2 5 -f* Environment Reporter 0013-92n/89/$0+.50 MARDEP000409 Page 2 POLLUTION ana, struck an unmarked wreck and discharged oil. After the barge's owner refused re sponsibility for the discharge, thel United States removed the oil and! sued for cleanup costs in the federal] district court. The suit was filed S against Hollywood Marine, the barge that carried the oil, and the firm West | o f England, which was financially re sponsibility for the barge. The federal district court held the owner liable, finding that the tug's non-negligent decision to navigate outside the chan nel was a contributing cause of the oil discharge and that the defendants had failed to prove that the discharge was caused solely by the act or omission of a third party. The district court also found the defendants jointly, several ly, and solely liable to the United States for the cleanup plus prejudg ment interest at a rate of nine percent. On appeal, the defendants argued that while the Clean Water Act is a strict liability statute, there are four liability exceptions: an act of God, act o f war, negligence of the part of the United States Government, or an act or omission of a third party. Merely proving that the barge and tug were non-negligent satisfied the liability ex ception, the defendants maintained. On that point the court agreed that if a defendant can establish the exis tence of one of the four exceptions, it will be exempt from liability. How ever, the court said, the statute does not state that a showing of non-negli gence on the part of the discharger will suffice to invoke the exception and absolve the owner and operators from liability. Moreover, the tug's non-negligence does not constitute a third party within the meaning o f the the act. Evaluating the language of the act in this situation, the court concluded that if an owner or operator is at fault, then it may not successfully claim a liability exception. The language does Out A t The Plant Asbestos Enforcement Renovators, demolishers, landlords, and owners of buildings contaminated with asbestos take heed: EPA an nounced Aug. 22 a new enforcement policy intended to stop violators of the asbestos regulations under the Clean Air Act's National Emission Standards for Hazardous Air Pollutants. The NESHAP outlines control re quirements to follow when removing as bestos from structures to prevent visible emissions. Control techniques include continuously spraying the exposed area with water or the use of a baghouse. The standard also requires air pollution con trol officials to be notified of a demoli tion or renovation project that involves asbestos. The new enforcement policy will re sult in fines of up to five times the !amount previously imposed, EPA said. | Instead of the previous of fine of $4 per the court maintained. The defendants argued that such a conclusion is the same as saying that a vessel under way always will be liable because its choice to navigate will al ways be a contributing cause. The court said no. Choosing to navigate is not the only factor involved in the case, the court said. The choice made was not simply a choice to navigate, but a choice to navigate outside a maintained, marked channel. E Fuel Leaded Gas Alternative Responding to the need in Southern California to clear the smog created by tailpipe exhaust, ARCO intro duced Sept. 1 a fuel to replace leaded gasoline. Called EC (Emission Control)-l, the lead-free gasoline is in tended for vehicles that do not have catalytic convertors, specifically pre1975 cars and pre-1980 trucks. square foot of asbestos involved, EPA said it will now fine violators $20 per square foot. The gravity of the offense also will be considered and each viola tion of a management practice will be considered separately, instead of lumped together. Building owners and landlords may also be held responsible when noti fication requirements are not followed, the agency said. Furthermore, EPA announced it will place serious offenders bn a list of facili ties barred from receiving federal grant and loan monies, a practice currently done following criminal cases. The announcement to get tough with violators came on the heels of an EPA inspector general's report that conclud ed the NESHAP's enforcement was less than adequate. On the day the stricter enforcement policy was announced, 13 lawsuits in 11 states were filed by EPA and the Justice Department for viola tions of the NESHAP, some of which dated back to 1984. gj uJ&arn&Mlnrfflaaains . mp^Jayllertiary butyl ether and has 1 percent^oxygen" by weight. Compared to leaded gaso line, EC-1 emits less carbon monox ide. The fuel also contains one-third less olefins and aromatics, 50 percent less benzene, and 80 percent less sulfur. ARCO, the South Coast Air Qual ity Management District, and the California Air Resources Board pre dicted that if all users of leaded gaso line switch to the new fuel, about 350 tons of pollutants that are spewed into the air every day would be removed. That would be equivalent to removing 20 percent or more than 300,000 vehi cles that burn leaded gasoline. Development of EC-1 was ARCO's first phase in the search for cleaner burning fuels, according to Lodwrick M. Cook, ARCO's chairman and chief executive. The second phase will be the development of a gasoline to reduce emissions from newer cars. E Air A W ater Pollution Control (IS S N 0890-0396) is published biweekly by T he Bureau o f National Affairs, Inc., 1231 25th S tre e t, N .W ., W ashington, D.C. 20037 for $236 per year. Second-class postage paid at W ashington, D.C. and a t additional mailing offices. P O S T M A S T E R : Send address changes to Air & W ater Pollution Control. T he Bureau of N ational Affairs, Inc., P.O. Box 40949, W ashington, D C. 20016-0949. W illiam A. Beltz. Editor in Chief; Hugh Y arrington, Executive Editor: Patricia R. W estlein, Associate Editor; Eileen Z. Joseph, M anaging Editor; Beth L. S tarr, Editor; Regina Petraska, Editor: Carole L. Macko, Editor; Jerome Ashton, Copy Editor. Index: Helen M. Kleiman. Chief Index Editor; Emil Toth. M anager. Environment and Safety Indexing Unit; Kathleen O. Clark, Index Editor. 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