Asbestos: a legal primer for Air Force installation attorneys

Air Force Law Review, Wntr, 2004 by James V. Cannizzo

I. 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.

II. 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)

III. 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.

A. 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.