Asbestos: a legal primer for Air Force installation attorneys.

• Author: Cannizzo, James V.

1. INTRODUCTION

   At virtually all military installations, asbestos will sooner or later create environmental, safety and legal issues. In years past, asbestos was so widely used in construction materials that it is presumed present in structures built prior to 1980. (1) The statutes and regulations that today address the potential hazards of asbestos are part of a complex, piecemeal and overlapping scheme to control toxic substances in general. The purpose of this article is to provide a basic familiarization with asbestos, highlight relevant statutory and regulatory provisions, illustrate their application to asbestos remediation, discuss the degree to which federal facility operators are subject to potential civil and criminal liability, and suggest ways in which proactive stances may be taken to preclude any such liabilities.

2. ASBESTOS

   Asbestos is a naturally occurring silicate mineral fiber, the most common type of which is white; others are blue, gray or brown. (2) The different types include chrysotile, amosite, crocidolite, tremolite, anthophyllite and actinolite. Chrysotile is the most common type of asbestos, and makes up approximately 90%-95% of all asbestos contained in U.S. buildings. (3)

   Asbestos is resistant to heat, corrosion, and friction, and has a high tensile strength and stiffness. (4) These properties make it a seemingly superb insulating and construction material. Hence, asbestos is commonly found in wallboard, panels, ceiling tile, (5) floor tiles, roofing material (e.g., felt, flashing and paint), cement-asbestos siding and piping, fire doors, elevators, brake shoes, gaskets, mastic, caulk, paint and laboratory equipment (e.g., hoods, oven gaskets, gloves and bench tops). (6)

   When locked into a surrounding matrix where the asbestos fibers are not capable of becoming airborne, asbestos is said to be "nonfriable." (7) Alternatively, asbestos is "friable" when its matrix is sufficiently degraded that it can be crumbled to a powder with hand pressure, thereby causing a potential release of asbestos fibers into the air. (8) Asbestos is hazardous when its fibrous particles become airborne, creating the possibility that they may be inhaled or ingested. (9) Exposure to very high levels of airborne asbestos has been linked to asbestosis, characterized by scarring of the lungs; mesothelioma, characterized by cancer of lungs, chest and abdominal cavity lining; as well as lung and gastrointestinal cancers. (10) Illness typically occurs 15-40 years following exposure. (11)

   Microscopic asbestos fibers can be made airborne through any number of activities relating to asbestos containing material (ACM). (12) Asbestos fibers may become airborne through "contact," "reentrainment" or "fallout." Contact includes striking, cutting and drilling ACM. (13) Reentrainment refers to the sweeping, dusting or unfiltered vacuuming of asbestos dusts. (14) Fallout refers to old and deteriorated asbestos fibers becoming airborne due to damage or destruction of the bonding agent used to hold the ACM together. (15)

   The simple presence of ACM in a structure does not necessarily require its abatement or active management. Schools are an exception, where more extraordinary effort may be required to prevent any exposure to children. (16) Generally, abatement is only mandated where there is a threat to human health, usually in the form of potential exposure to airborne asbestos. (17)

   Threats to human health can frequently be found in building demolition and renovation because such activities often result in ACM contact and reentrainment. (18) Additionally, maintenance workers such as civil engineers, craftsmen and custodians are at risk of potential exposure from fallout because their work routinely puts them in places such as boiler and machinery rooms where asbestos is frequently present in old insulating materials and machine parts. (19) Hence, these personnel must be trained in the recognition and proper handling of friable asbestos. (20)

3. APPLICABLE STATUTES AND REGULATIONS

   The primary legal authority governing toxic substances generally is the Toxic Substances Control Act (TSCA), (21) enacted by Congress to give the U.S. Environmental Protection Agency (EPA) the ability to track the 75,000 industrial chemicals currently produced in the United States or imported from other countries. (22) Although TSCA does address asbestos, (23) in practice, regulations issued pursuant to the Occupational Safety and Health Act (OSHA) (24) and the Clean Air Act (CAA) (25) play a larger role in controlling asbestos remediation issues. Accordingly, this article will next examine the OSHA and the CAA, with other applicable statutes and regulations to follow.

   1. Occupational Safety and Health Act (26)

      While the Occupational Safety and Health Act does not contain specific provisions on asbestos, it provides the Occupational Safety and Health Administration the authority to issue regulations for workplace safety. (27) In the asbestos arena, the most important OSHA regulation incorporates a Construction Standard for Asbestos. (28) It applies to individuals involved in construction, renovation and demolition activities. It establishes a permissible exposure limit (PEL) of 0.1 fibers per cubic centimeter of air (f/cc) as an eight-hour time-weighted average and an excursion level of 1.0 f/cc averaged over a sampling period of 30 minutes. (29) It also establishes engineering controls (30) and personal protective equipment requirements for individuals involved in asbestos-related work, and outlines requirements for medical surveillance and record keeping.

      The other OSHA regulation that bears close scrutiny is the General Industry Standard for Asbestos. (31) It establishes the same PEL and excursion limit as outlined in the Construction Standard. The scope of the General Industry Standard applies to all occupational exposures to asbestos not specified in the Construction Standard. (32) For example, it would apply to custodians who perform equipment maintenance in areas where ACM is present or to vehicle maintenance workers who work with brakes that contain ACM. (33)

      Notably, OSHA does not directly apply to federal facilities. Its provisions, however, have been made applicable via a mandate in Executive Order (EO) 12,196, directing that all federal agencies have occupational safety programs. (34) Unless alternative standards have been approved by the Secretary of Labor, these programs must abide by OSHA standards.

      The Air Force has implemented EO 12,196 through Air Force Instruction (AFI) 91-301, Air Force Occupational and Environmental Safety, Fire Protection, and Health (AFOSH) Program (35) and AFOSH Standard 48-8, Controlling Exposures To Hazardous Materials. (36) Attachment 9 to AFOSH Standard 48-8 specifically covers Occupational Exposure to Asbestos.

      Another key Air Force asbestos regulation is AFI 32-1052, Air Force Facility Asbestos Management, requiring bases to conduct facility asbestos surveys and develop Asbestos Management and Operating Plans. (37) Other relevant Air Force instructions include, AFI 32-7040, Air Quality Compliance, (38) AFI 32-7066, Environmental Baseline Surveys in Real Estate Transactions (39) and AFI 48-119, Medical Service Environmental Quality Programs. (40)

   2. The Clean Air Act (41)

      In 1970, the Clean Air Act (CAA) authorized EPA to identify hazardous air pollutants and establish risk-based National Emission Standards for Hazardous Air Pollutants (NESHAPs) for new and existing sources. (42) The following year, EPA identified asbestos as a hazardous pollutant; and in 1973, promulgated the Asbestos NESHAP. (43) Virtually all states have been delegated authority to administer the federal asbestos NESHAP program, though EPA still retains program oversight authority. (44)

      The asbestos NESHAP establishes standards for renovation or demolition activities where certain threshhold quantities of regulated asbestos-containing materials (RACM) (45) are present. (46) The standards minimize the release of asbestos fibers through specified work practices to be followed in the processing, handling and disposal of ACM. (47) Additionally, the regulations require the owner of the building or the contractor to notify applicable state and local agencies or EPA regional offices before all demolition or renovation of buildings that contain a certain threshold amount of asbestos. (48)

   3. The Toxic Substances Control Act (49)

      In relation to asbestos, TSCA and its implementing regulations are primarily concerned with schools: the identification of ACM in schools, school response actions to ACM once discovered, and the training and accreditation of those who conduct school abatement actions. (50) More recently, TSCA's training and accreditation provisions have been extended to certain work performed in public and commercial buildings (i.e., non-school buildings). (51)

      1. Toxic Substance Control Act and Schools

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

         A more comprehensive law, the Asbestos Hazard Emergency Response Act (AHERA), was passed in 1986. (52) It, too, primarily applies to schools, including Department of Defense elementary and secondary schools. AHERA does not apply to training schools for military or civilian personnel. (53) AHERA requires local education agencies to inspect their schools for asbestos containing building materials and prepare management plans that recommend the best way to reduce the asbestos hazard. (54) Options include repairing damaged ACM, spraying it with sealants, enclosing it, removing it or keeping it in good condition so that it does not release fibers. (55)

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