# Petition for Writ of Certiorari — Harendra Enterprises Enterprises, Inc. v. Wisconsin (No. 08-319) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0671%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2008 ## Text (7) } Supreme Court U.S. 08-319 SEP 4- 2008 04 & No.:: see °" OE EICE OF THE CLERK Hn the Supreme Court of the United States HARENDA ENTERPRISES, INC., Petitioner, ws STATE OF WISCONSIN, Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF WISCONSIN PETITION FOR WRIT OF CERTIORARI MARK W. RATTAN Counsel of Record LITCHFIELD CAVO, LLP 13400 BISHOPS LANE, SUITE 290 BROOKFIELD, WI 53005 (262) 784-8966 ATTORNEY FOR PETITIONER LEGAL PRINTERS, Washington DC @ 202-747-2400 e@ leyvalprinters.com QUESTIONS PRESENTED FOR REVIEW Introductory Statement Petitioner, Harenda Enterprises, Inc. (HEI), is one of many firms across the United States that investigates buildings to determine whether they contain a level of asbestos that must be abated prior to renovation. In a 4-3 decision, the Supreme Court of Wisconsin held HEI liable for asbestos abatement violations pursuant to a long-held policy of the federal Environmental Protection Agency (EPA) that was never enacted by legal administrative rulemaking under the federal Administrative Procedure Act (APA), and that is inconsistent with the asbestos abatement regulation that the EPA did legally enact under the APA. _ Effectively, the Wisconsin decision also holds that, when the defendant’s test results for asbestos are negative and government’s test results are _ positive, the government’s positive test results are presumptively valid and the defendant’s negative test results are presumptively invalid. The effect of the decision is to vastly increase the social and economic cost of asbestos abatement and to impose a presumption of guilt on a defendant accused of violating asbestos abatement regulations. Questions Presented For Review Issue 1: Can two publications unilaterally handed- down by the EPA without observance of legally required administrative rulemaking -- the effect of a which dramatically increases the _ social and economic cost of asbestos abatement and increases the criminal and civil liability of owners and operators of building renovations -- be given the force of law by the courts and thereby serve as the basis for imposition of criminal and civil hability under other properly enacted asbestos abatement regulations? Issue 2: Did the Supreme Court of Wisconsin violate HEI’s substantive due process rights under the 14th Amendment to the U.S. Constitution by holding HEI liable for asbestos abatement violations on a presumption of guilt under circumstances where the defendant’s test results for asbestos are negative and the government’s tests for asbestos are positive? Issue 3: If, as the State contended in the lower courts, and as the Supreme Court of Wisconsin held, the asbestos abatement regulation that the EPA did pass through legal administrative rulemaking is vague, confusing and unclearly written, the issue becomes whether the regulation is void for vagueness under the 14th Amendment to the U.S. Constitution. -ji- PARTIES TO THE PROCEEDING The parties to this petition are as indicated on the caption. Petitioner is Harenda Enterprises, Inc., and respondent is the State of Wisconsin. Harenda Enterprises, Inc. has no _ parent corporations, and there is no corporation that owns 10% or more of Harenda Enterprises, Inc.’s stock. -11l- TABLE OF CONTENTS SECTION TITLE Page QUESTIONS PRESENTED FOR REVIEW 1 Introductory Statement ............ i Questions Presented For Review ..... 1 PARTIES TO THE PROCEEDING....... iii PUI I GADIN EME: os cece vi sseees iv CITATIONS OF OFFICIAL REPORTS... 1 STATEMENT OF THE BASIS’ FOR RRO 6k a 5)ns Wb ee ea Sais es wo es 2 CONSTITUTIONAL PROVISIONS, TREATIES AND ORDINANCES INVOLVED IN THE CASE............. 3 STATEMENT OF THE CASE........... 4 I. NATURE OF THE CASE......... 4 II. NATURE OF THE FEDERAL ISSUES INVOLVED IN THE CASE 7 A. ‘The Federal Issue Concerning The Supreme Court Of Wisconsin Having Validated The EPA’s Illegal Attempt -]1V- SECTION TITLE Page To Pass Substantive Regulations Without Observing Administrative Procedure Act Rulemaking... 7 1. Background: The Legally Passed Regulations Under The NESHAP And The Interim Method...... 7 2. The Federal Issue Regarding The EPA’s Illegal Attempt To Effect A Substantive Change To The Interim Method By Administrative Fiat... 10 B. The Federal Issue Concerning The Violation Of HEI’s Substantive Due Process UG ik vk bwide een ye eaw es 16 C. The Federal Issue Concerning The Interim Method Being Void For Vagueness........ 18 il. STAGE OF THE PROCEEDINGS IN THE LOWER COURTS WHEN THE FEDERAL QUESTIONS ee eee 19 SECTION TITLE RULE 14(h): REASONS WHY THE WRIT SHOULD BE GRANTED .. 0.0... ce0- I. THIS COURT SHOULD GRANT CERTIORARI UNDER RULE 10(c) BECAUSE THE SUPREME COURT OF WISCONSIN HAS DECIDED AN IMPORTANT QUESTION OF FEDERAL LAW THAT SHOULD BE SETTLED BY THIS COURT... A. This Court Should Settle The Federal Question Concerning The Single Layer v. Combined Layer Testing Method Because The EPA’s Illegal Rule Significantly Increases The Economic And Social Cost Of Asbestos Abatement OI hee Sk. ck bee aea:s B. This Court Should Settle The Federal Question Concerning The Single Layer v. Combined Layer Testing Method Because The Supreme Court Of Wisconsin’s Decision Increases Potential Asbestos Liability In Building TE ok ep bw ee ess Il. THIS COURT SHOULD GRANT CERTIORARI UNDER RULE 10(b) -vi- Page No. 22 22 22 25 Il. SECTION TITLE BECAUSE THE INCONSISTENT DECISIONS BY THE LOWER COURTS WARRANT THAT THE FEDERAL ISSUE CONCERNING SINGLE LAYER VERSUS COMBINED LAYER TESTING BE SETTLED BY THIS COURT...... THIS COURT SHOULD GRANT CERTIORARI ON THE SUBSTANTIVE DUE PROCESS ISSUE UNDER RULE 10(c) BECAUSE IT HAS NATIONAL IMPLICATIONS FOR THE COST OF ASBESTOS ABATEMENT ENN as ck eS E Oa ek A. This Court Should Settle The Substantive Due _ Process Issue Concerning Whether The State’s Positive Test Results Are Presumptively Valid And The Defendant’s Negative Test Results Are Presumptively Invalid...... B. This Court Should Settle The Substantive Due _‘— Process Issue Concerning Whether Liability For Asbestos Abatement Violations Must Be Based Upon Representative Samples..... -vll- Page No. 26 29 29 32 APPENDICES Document No. Document No. 1: State of Wisconsin v. Harenda Enterprises, Inc., 2008 WI 16, _.. Wis. 2d __, 746 PN, Pe cn er OP I bk svc ee ae wl ee Document No. 2: State of Wisconsin v. Harenda Enterprises, Inc., 2006 WI App 230, 297 Wis. 2d 571, 724 N.W.2d 434 (Wis. Ct. App. 2006)..... Document No. 3: Order of the Supreme Court of Wisconsin Denying Rehearing, June 11, 2008....... Document No. 4: ee ee NE 6 ecco 8 Cain ie a Document No. 5: National Emission Standards For Hazardous Air Pollutants (NESHAP), 40 Mere Rae, Ob MOO 6 ok C8 he eS ke ies Document No. 6: Interim Method of the Determination of Asbestos in Bulk Insulation Samples, appendix E, subpart E, 40 CFR part 763, NN Be kK ob ye Ce ee oe ca en eee Document No. 7: Clean Air Act, 42 U.S.C. §7412 -Vill- Page A-70 A-73 A-75 A-101 Document No. Administrative Procedure Act (APA), 5 ee Se ds gi eo ae pg 6. seks ss Document No. 8: Administrative Procedure Act, 5 U.S.C. Document No. 9: NR 447.04(28), Wisconsin Administrative ATES SS eg a a er Document No. 10: NR 447.01-.02; NR 447.06-.08; NR 447.18, Wisconsin Admin '‘strative Code.......... Document No. 1° Asbestos NESH.\P Clarification Regarding Analysis Of Multi-Layered Systems, Federal Register, Vol. 59, No. 3, January 5, kya vined a se sake 4 MN 0.8 Co 6 48 Document No. 12: Asbestos NESHAP Clarification Regarding Analysis Of Multi-Layered Systems, Federal Register, Vol. 60, pp. 65243-44, te eek ec ewe wees Document No. 13: United States v. San Diego Gas & Electric Company, 2006 WL 391 3457 (Nov. 21, mouer * wan Diego Gaal’)... ... 2.2.2.0 ee -1X- A-124 A-126 A-154 A-159 Document No. Document No. 14: Trial Court Stipulation................. Document Ne. 15: Order Concerning Summary Judgment Motions, Other Motions And Scheduling. . Document No. 16: Trial Court Order Denying Motion In a a CK ays eae ROK OR Re ew Document No.17: Findings Of Fact And Coriclusions Of Law Document No. 18: Final Judgment In Favor Of The State Of ee ee ee Aa Document No. 19: EPA “Notice”, 59 Fed. Reg. 38970 (August Re a ee alae aba ie Document No. 20: UTED. ko eh cerewien Document No. 21: et RS SE ROED 66s we dee hoe be ek eee Document No. 22: United States v. San Diego Gas & Electric Company, 2007 WL 4326773 (December 7, 2007) € “San Diedo Gee ff")... wc ce ees A-202 A-210 A-226 Document No. Page No. Document No. 23: Asbestos-Containing Materials in School Buildings: A Guidance Document nD BE eee oa rer re oe er A-277 -X1- TABLE OF CITED AUTHORITIES Cited Authority Page Cases State of Wisconsin v. Harenda Enterprises, Inc., 2008 W116,___s- Wis. 2d__, 746 N.W.2d 25 (Wis. 2008) [Appx., Doc. 1]......:.cccsseeeesseeeetesseeseteeesees 1 State of Wisconsin v. Harenda Enterprises, Inc., 2006 WI App 230, 297 Wis. 2d 571, 724 N.W.2d 434, (Wis. Ct. App. 2096) [Appx., Doc. 2].... 1 United States v. San Diego Gas & Electric ) Company, 2006 WL 391 3457 | (Nov. 21, 2006) (“San Diego Gas I’) EArt, TIG6G; LOE ccccsevsesesscosessecens. 13, 16, 21, 23, 26-28 United States v. San Diego Gas & Electric Company, 2007 WL 4326773 (December 7, 2007) (“San Diego Gas IT’) | NN oe 4 ies Uavenhns-datvcabenaseden se one 33, 35-38 | j Women’s Medicai Center of Northwest Houston v. Bell, 248 F. 3d 411 (5th Cir. 2001)...... 19 | q Constitutional Provisions 14th Amendment to U.S. Constitution ....... a, 17, 19 Statutes Be SFG. BAO? TPIE., DIGG, 4) x00... .cccsvecssscncecessces 2 -Xil Cited Authority Page Administrative Procedure Act, 5 U.S.C. §553 RN PRIN TE os ch edi als died sidkecanan dekuleasanmpevoinivantnimn swan 7 Clean Air Act, 42 U.S.C. §7412 [Appx., Doc. 7] ...... a. Clean Air Act, 42 U.S.C. §7413(b) i lv s abs cesouenains 25 Wis. Stat. §285.87(1) [Appx., Doc. 20]................... 25 Regulations Asbestos-Containing Materials in School Buildings: A Guidance Document (“Reference 5”) SUNN: NE MEE Shas hAnicesucneine daievesmacevascnydes 18, 33-34, 36 Interim Method of the Determination of Asbestos in Bulk Insulation Samples, appendix E, subpart E, 40 CFR part 763, section 1.7.2.1. [Appx., Doc. 6] .......... 7, 8-16, 18-23, 26-28, 33-35, 38 National Emission Standards For Hazardous Air Pollutants (NESHAP), 40 CFR §61.140, et. seg. [Appx., BOOT vasvesasss 7-8, 11-12, 16, 18, 20, 22, 25, 34, 36-38 NR 447.04(28), Wisconsin Administrative Code I ET a hrc lane aca tekondsais sn Mdacud eased vieitiete 9 -Xill Cited Authority Page No. Other - EPA Publications Asbestos NESHAP Clarification Regarding Analysis Of Multi-Layered Systems, Federal Register, Vol. 59, No. 3, January 5, 1994 SON NS I Da ial eucallsinnne 11 Asbestos NESHAP Clarification Regarding Analysis Of Multi-Layered Systems, Federal Register, Vol. 60, pp. 65243-44, December 19, 1995 [Appx., Doc. 12]...................... 12 EPA “Notice”, 59 Fed. Reg. 38970 (August 1, 1994) Ss) MN INE Sissi cscs beeps suc eves phicabodl dey aadaetee vata 22 -X1V CITATIONS TO OFFICIAL REPORTS The citation to the opinion of the Supreme Court of Wisconsin is State of Wisconsin v. Harenda Enterprises, Inc., 2008 WI 16, Wis. 2d __., 746 N.W. 2d 25 (2008). [Appx., Doc. 1, pp. A-1 to A-56] The citation to the Wisconsin Court of Appeals decision is State of Wisconsin v. MHarenda Enterprises, Inc., 2006 WI App 230, 297 Wis. 2d 571, 724 N.W.2d 434 (Ct. App. 2006). [Appx., Doc. 2, pp. A-57 to A-59] STATEMENT OF THE BASIS FOR JURISDICTION The date of the judgment sought to be reviewed is a decision of the Supreme Court of Wisconsin dated March 13, 2008. [Appx., Doc. 1, pp. A-1 to A-56] The date of the denial of rehearing is June 11, 2008. [Appx., Doc. 3, pp. 70-72] The statutory provision that confers on this Court jurisdiction to review a petition for writ of certiorari the judgment in question is 28 U.S.C. §1257. [Appx., Doc. 4, pp. A-73 to A-74] CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES AND ORDINANCES INVOLVED IN THE CASE This case involves the due process clause of the 14th Amendment to the U.S. Constitution, which provides in relevant part as follows. Section 1. ... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Per rule 14.1(f), the remaining provisions are too voluminous to reproduce here, and are accordingly reproduced in the Appendix. They are all cited in the Table of Contents above. STATEMENT OF THE CASE I. NATURE OF THE CASE. Respondent, the State of Wisconsin (“the State”) filed this action against petitioner, Harenda Enterprises, Inc. (HED), in the Circuit Court of Milwaukee County, Wisconsin on July 30, 2003 seeking recovery for HEI’s alleged failure to comply with various asbestos abatement regulations in connection with the renovation of a building known as the Milwaukee Auditorium (“the Auditorium”). HEI is in the business of environmental, health and safety consulting and contracting. The Wisconsin Center District (WCD), a quasi-municipality that operates the Auditorium, retained HEI to render professional asbestos consulting services. in connection with the renovation. HEI’s primary role was to undertake sampling and testing of ceilings, walls and other components of the Auditorium to determine whether any components of the Auditorium contained asbestos that would have to be abated prior to renovation under applicable federal laws and regulations more fully described in the following section. In sum and substance, the State contended in the lower courts that HEI failed to identify all of the asbestos in the Auditorium under the illegal testing protocols that the EPA never enacted through proper rulemaking. Because of HEI’s alleged failure to identify all the asbestos, the State contended that various walls of the Auditorium that contained asbestos were demolished without observance of the asbestos abatement regulations. HEI’s failure to -4- identify all of the asbestos subjected HEI to the forfeiture penalties imposed by the regulations, the State contended. In a 4-3 decision, the Supreme Court of Wisconsin ruled for the State, and found HEI liable for asbestos abatement violations pursuant to the EPA’s illegal testing protocols that were never enacted by legal administrative rulemaking under the APA. The Wisconsin decision is inconsistent with the testing protocols in the asbestos abatement regulation that the EPA did legally enact under the APA. Under this decision, when the defendant’s test results are negative for asbestos and government’s test results for asbestos are _ positive, the government’s positive test results are presumptively valid and the defendant’s negative test results are presumptively invalid. If allowed to stand, the effect of the decision is two-fold. First, it subjects owners and operators of building renovations to criminal liability and millions of dollars in civil forfeiture penalties based upon (1) EPA policies concerning asbestos testing never enacted as rules, and (2) an illegal presumption of guilt in favor of the government and against the individual. Second, the Wisconsin decision vastly increases the economic and social cost of asbestos abatement in building renovations on a national basis, and vastly expands the jurisdiction of the EPA and the universe of material subject to regulation. In so doing, the decision imposes liability found nowhere in the law. “a hee ee ee ee en a, ee eee This Court has never addressed the federal issues raised in this appeal. These issues have only been addressed by the decisions of the Southern District of California, the Supreme Court of Wisconsin, and lower Wisconsin courts. As discussed, infra, the Southern District of California reached the exact opposite decision from the Supreme Court of Wisconsin. Because of the inconsistent federal-state decisions, the national implications of the Wisconsin decision on the cost of asbestos abatement, and the civil and criminal liability the decision imposes on owners and operators of building renovations nationally, HEI seeks a writ of certiorari for this Court to reverse the decision of the Supreme Court of Wisconsin. IT. NATURE OF THE FEDERAL ISSUES INVOLVED IN THE CASE. A. The Federal Issue Concerning The Supreme Court Of Wisconsin Having Validated The EPA’s Illegal Attempt To Pass’ Substantive Regulations Without Observing Administrative Procedure Act Rulemaking. i. Background: The _ Legally Passed Regulations Under The NESHAP And _ The Interim Method. The background of the initial federal question in this case concerns the asbestos testing protocols for building renovations that the EPA did legally enact under National Emission Standards For Hazardous Air Pollutants (NESHAP), 40 CFR §61.140, et. seq. [Appx., Doc. 5, pp. A-75 to A-100] The NESHAP’s mandated method for testing for asbestos is the “Interim Method of the Determination of Asbestos in Bulk Insulation Samples” (“the Interim Method”), codified at appendix E, subpart E, 40 CFR part 763, section 1.7.2.1. [Appx., Doc. 6, pp. A-101 to A-118] The U.S. Environmental Protection Agency (EPA) passed the NESHAP per its authority under the Clean Air Act (CAA), 42 U.S.C. §7412 = following valid administrative rulemaking under the Administrative Procedure Act (APA), 5 U.S.C. §553 [Appx., Doc. 7, pp. A-119 to A-120; Appx., Doc. 8, pp. A-121 to A- 123] Under the NESHAP, the owner or operator of a building scheduled for renovation must undertake an investigation to determine whether the building contains what the NESHAP designates as “Asbestos Containing Material” (ACM). See 40 CFR §61.145(a). [Appx., Doc. 5, pp. A-84 to A-87] The investigation involves taking samples of walls, ceilings and other building material in accordance with sampling protocols in the Interim Method [Appx., Doc. 6, pp. A-102 to A-117] The samples are then tested for asbestos in a laboratory. Essentially, the testing protocols in the Interim Method require that a lab analyst determine the asbestos content of the samples by viewing them through a polarized light microscope and counting the asbestos fibers, a process known as “Polarized Light Microscopy.” The sample is considered ACM if the lab analyst determines that it contains “more than 1 percent asbestos as determined using the [polarized light microscopy] methods specified in [the Interim Method].” 40 CFR §61.141. [Appx., Doc. 5, p. A-78] If the analyst’s estimate exceeds the 1% regulatory threshold, all “homogeneous areas” of the wall from which the sample was taken are considered as containing ACM. [R. 15: 943-48] If the ACM containing walls are to be demolished as part of a renovation, the ACM is considered “Regulated Asbestos Containing Material” (RACM), and becomes subject to the NESHAP’s abatement requirements. 40 CFR §61.141. [Appx., Doc. 5, p. A- 82] The abatement requirements provide that the RACM cannot simply be demolished if, for example, walls with ACMs are to be removed as part of the renovation. Instead, the abatement requirements mandate that the walls with ACMs must be “adequately wetted,” “carefully lowered,” etc. prior to demolition. 40 CFR §61.145(c)(2)(i)-(1i). [Appx., Doc. 5, pp. A-93] In addition, the abatement requirements mandate that the EPA be notified of the planned renovation when the building contains RACM. 40 CFR §61.145(b).! [Appx., Doc. 5, p. A-87] 1 The State actually brought the lawsuit under NR 447, Wisconsin Administrative Code. The State’s claims under NR 447, however, do not affect the federal nature of the issue, because in NR 484.04(28) the State adopted the Interim Method. [Appx., Doc. 9, pp. A-124 to A-125] In addition, the State adopted the NESHAP verbatim with the exception of a few cosmetic, non-substantive changes. The provisions of NR 447 that the State asserted HEI violated are thus virtually identical to the NESHAP. Compare the violations the State alleged in NR 447.08(6) concerning “carefully lowering” and “adequately wetting” to virtually identical provisions in 40 CFR §61.145(c); the notice violations the State alleged in NR 447.07 to the virtually identical provisions in 40 CFR §61.145(b); and the prohibition against discharge of asbestos into outside air the State alleged in NR 447.13(1) to the virtually identical provisions in 40 CFR §61.150. [Appx., Doc. 10, pp. A-126 to A- 153; Appx., Doc. 5, pp. A-75 to A-100] More important, the federal issue involves the promulgation and interpretation of the Interim Method, and both the NR 447 regulations and the NESHAP expressly adopt the Interim Method. See NR 447.02(1) and 40 CFR §61.141. [Appx., /d.] As discussed below, one of the major federal issues the lower courts addressed was whether the asbestos test results upon which the State relied to establish that the Auditorium contained ACM satisfied the Interim Method as adopted by 40 CFR §61.141 and NR 447.02(1). -9- 2. The Federal Issue Regarding The EPA’s Illegal Attempt To Effect A Substantive Change To The Interim Method By Administrative Fiat. The dispute that raises the initial federal question in this case revolves around the required testing protocols under the Interim Method for the type of “layered” wall material that is frequently encountered in building renovations across the United States -- i.e., wall material that, because of prior renovations, may contain a layer of plaster, a layer of stucco, a layer of dry wall, and perhaps multi-layers of paint -- where some of the layers may contain ACM and some may not. The Interim Method provides in Section 1.2.7.1. that each layer is tested for asbestos, and the results are combined to obtain an overall result for the entire sample, as follows. 1.7.2.1. Gross Examination Bulk samples of building materials taken for the identification and quantitation of asbestos are ffirst examined for homogeneity at low magnification with the aid of a stereomicroscope. The core sample may be examined in its container or carefully removed from the container onto a glassine transfer paper or clean glass plate. If possible, note is made of the top and bottom orientation. When discrete strata [i.e., layers] are identified, each is treated as a separate material so that fibers -10- - = are first identified and quantified in that layer only, and then the results for each layer are combined to yield an estimate of asbestos content for the whole sample. {Emphasis added] [Appx., Doc. 6, p. A-107] Clearly, there are two clauses to the testing requirements in the italicized sentence that fashions a two-part test, known as “combined layer testing.” The first clause requires that the asbestos fibers be quantified in each layer of wall material. Under the second clause, the numerical results are combined to obtain an asbestos content for the entire sample. There is ne requirement in the above italicized language that the results for each layer be reported. The EPA was never satisfied with the combined layer testing method of the Interim Method that it had enacted under the APA, so it fashioned a policy that, if not outright secret, was “unwritten.” The unwritten policy, known as “single layer testing,” was that, if any one layer of wall material contained greater than 1% ACM, the entire sample would be considered ACM under the NESHAP abatement regulations -- even if the combined result of all layers resulted in less than 1% ACM in the sample. Instead of enacting this unwritten policy by observance of APA rulemaking procedures, the EPA issued two publications that it disingenuously characterized as “clarifications” of Section 1.7.2.1. of the Interim Method. The first EPA “clarification” is titled “Asbestos NESHAP Clarification Regarding Analysis Of Multi- Layered Systems,” and is published in the Federal «De ——_ bn Register, Vol. 59, No. 3, January 5, 1994. [Appx., Doc. 11, pp. A-154 to A-158] The second “clarification” is titled “Asbestos NESHAP Clarification Regarding Analysis Of Multi-Layered Systems,” and is published in the Federal Register, Vol. 60, pp. 65243-44, December 19, 1995. [Appx., Doc. 12, pp. A-i59 to A-165] These publications are hereinafter referred to as “the Clarifications.” Contrary to the express terms of Section 1.7.2.1 of the Interim Method, which do not require the results of each layer be reported, the first Clarification dated January 5, 1994 purports to impose a reporting by layer requirement. “In general,” this Clarification provides, “when a sample consists of two or more distinct layers of materials, each layer should be treated separately and the results reported by layer.” [Emphasis added] [Appx., Doc. 11, A-156] The second Clarification, dated December 19, 1995, purports to require that if any one layer contains greater than 1% asbestos, the entire sample must be considered ACM even though the mathematical result from the combining of all layers would be less than 1% asbestos fibers. The “EPA’s unwritten policy,” the 1995 Clarification states, “was that each layer in a multi-layered system was to be analyzed as a separate material (no averaging or dilution by combining layers of asbestos-containing materiais with nonasbestos-containing material was allowed).” [Appx., Doc. 12, pp. A-161] It characterizes the January 5, 1994 Clarification as “basically statling] that ali multi-layered wall systems... must be analyzed as separate materials, 19. and results were not allowed to be combined to determine average asbestos content (continuing the policy that dilution of an _ asbestos-containing material is not allowed).” [Appx., Doc. 12, pp. A-162] Finally, the 1995 Clarification states that the entire sample must be treated as asbestos-containing if any one layer exceeds the 1% regulatory threshold. [Appx., Doc. 12, pp. A-164] If any layer contains greater than one percent asbestos, that layer must be treated as asbestos-containing. This will have the effect of requiring all layers in a multi-layered system to be treated as asbestos-containing if the layers can not be separated without disturbing the asbestos- containing layer. [Appx., Doc. 12, p. A-164] In the only other decision to address this issue, United States v. San Diego Gas & Electric Company, 2006 WL 3913457 (Nov. 21, 2006) (“San Diego Gas I’), the court succinctly articulated how the Clarifications impcse new obligations for asbestos abatement, and effect a substantive change to Section 1.7.2.1. of the Interim Method by eliminating the second part of the test that provides for mathematically combining the percent results for each layer. The [Clarification] test method ... imposes new obligations on the _ regulated community by expanding the scope of regulated asbestos containing material. Under the [Interim Method], to determine whether a multi-layered material contains 10:1. Colorless \38\, nonpleochroic. Amosite Straight, rigid 1.635-1.696 1.655-1.729 .020-.033 [verbar] to + (asbestiform fibers. Aspect \f\ (normally fiber length. dength grunerite). ratio typically 1.696- 1.710. slow) >10:1. Colorless to brown, nonpleochroic or A-111 weakly so. Opaque inclusions may be present. Crocidolite Straight, rigid 1.654-1.701 1.668- .014-.016 [verbar] to : (asbestiform fibers. Thick 1.717\3e\ fiber length. (length Riebeckite). fibers and _ bundles (normally fast) common, blue to close to purple-blue in 1.700). color. Pleochroic. Birefringence is generally masked by blue color. Anthophyllite- Straight fibers and 1.596-1.652 1.615-1.676 .019-.024 [verbar] to + asbestos. acicular cleavage NVA, fiber length. (length fragments.\d\ Some slow) composite fibers. Aspect ratio 3:1. \e\ to fiber length. \f\ [verbar]To fiber length. A-113 “AG RISO1 Ts LDH PITY URN? AQ cepiiers xEQ FO HATTER 40) LEI ORY “4-| BINOLY ORs ated “Ote/« | Orhan oy tacepe arty? 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CURRrus) eGarwr ov 154! 4 t t / tee usp) “A eg. ee ~> TOD FO BED) Woy re ons coraces wR gS Oe tor; critd ‘petaed 0) daw O6/) AP) BOD TY) BOY NutjOd petvEs> pus iets Pee Od eid Ny Ye MOOS 86 eA, ("C4 0 0'R Gy TUN oUe Tey ers UOYsLertER Demer 16) “HEH (LOSS | 4 eptuan peRaetp Agere ts tune, ‘UO Le-) A Pas 04 Lf Sees (O UOLLE UE eee AQ DUR PUrERe [Py eeUReN pO OdA) Yoee soy : wrAgrM AcocEp EEE Bf) COME Ay fe 7 Download or View Table 1-2_Central Stop Dispersion Staining Colors \a\ [eta] RI Liquid Mineral [eta][verbar] A-114 Best Available Copy iris ns ssseskiecsnrcumcocians 1.550 \HD\ Nie occ chicks stvnes Blue-magenta PA ooo is Gisoicinsinaitcvciccaceceen 1.680 Blue- magenta to pale blue.. Golden-yellow 1.550\HD\ Yellow to tl ee Yellow to white , Se NIN hives ceca 1.700 Red magenta. «.........:..0. Blue-magenta 1.550\HD\ Yellow to Write ......x;.;... Yellow to white Fe a ae ee ae 1.605\HD\ MR bia ancy. Gold to gold-magenta I i) ico cl ceudaoaitendatoies 1.605\HD c\ Pale SS ae eae Gold I ooo cadenueinvccecccuunavie 1.605\HD\ Gold- magenta to blue....... Gold 1.630\HD c\ Penwerta.. .. .....5.02....- Golden-yellow \a\ From reference 9. \b\ Blue absorption color. \c\ Oblique extinction view. 1.7.2.4 Quantitation of Asbestos Content Asbestos quantitation is performed by a _point- counting procedure or an equivalent estimation method. An ocular reticle (cross-hair or point array) is used to visually superimpose a point or points on the microscope field of view. Record the number of A-115 points positioned directly above each kind of particle or fiber of interest. Score only points directly over asbestos fibers or nonasbestos matrix material. Do not score empty points for the closest particle. If an asbestos fiber and a matrix particle overlap so that a point is superimposed on their visual intersection, a point is scored for both categories. Point counting provides a determination of the area _ percent asbestos. Reliable conversion of area percent to percent of dry weight is not currently feasible unless the specific gravities and relative volumes of the materials are known. For the purpose of this method, “asbestos fibers" are defined as having an aspect ratio greater than 3:1 and being positively identified as one of the minerals in Table 1-1. A total of 400 points superimposed on either asbestos fibers or nonasbestos matrix material must be counted over at least eight different preparations of representative subsamples. Take eight forcep samples and mount each separately with the appropriate refractive index liquid. The preparation should not be heavily loaded. The sample should be uniformly dispersed to avoid overlapping particles and allow 25-50 percent empty area within the fields of view. Count 50 nonempty points on each preparation, using either * Across-hair reticle and mechanical stage; or - A reticle with 25 points (Chalkley Point Array) and counting at least 2 randomly selected fields. A-116 For samples with mixtures of isotropic and anisotropic materials present, viewing the sample with shghtly uncrossed polars or the addition of the compensator plate to the polarized light path will allow simultaneous discrimination of both particle types. Quantitation should be performed at 100X or at the lowest magnification of the polarized light microscope that can effectively distinguish the sample components. Confirmation of _ the quantitation result by a second analyst on some percentage of analyzed samples should be used as standard quality control procedure. The percent asbestos is calculated as follows: % asbestos=(a/n) 100% where a=number of asbestos counts, n=number of nonempty points counted (400). If a=0, report "No asbestos detected." If 0 Standards for Hazardous Air Pollutants for Asbestos (asbestos NESHAP), 40 CFR part 61, subpart M, 55 FR 48406. The asbestos NESHAP applies to any facility as defined in 40 CFR 61.141. The Agency has learned that some of the regulated community have further questions concerning the analysis of samples which may contain multiple layers, any or all of which may be asbestos-containing materials (ACM) under the asbestos NESHAP. Because these questions are frequently asked, EPA is making this clarification. I. Clarification of Multi-Layered ACM System At the time the original asbestos NESHAP was promulgated (April 6, 1973), a standardized reference method had not been developed to determine quantitatively the content of asbestos in a material. The definition for “friable asbestos material” was added in the October 14, 1975 asbestos NESHAP, but still did not specify an analytical method. EPA’s unwritten policy based on the definition of “friable asbestos material” was that each layer in a multi-layered system was to be analyzed as a separate material (no averaging or dilution by combining layers of asbestos-containing material with nonasbestos-containing material was allowed). The November 20, 1990 revision of the asbestos NESHAP finally specified that Appendix A, Subpart F, 40 CFR Part 763, Section 1, Polarized Light Microscopy (PLM method) be used to A-161 determine whether or not a material contains greater than one percent asbestos. Section 1.7.2.1 of the PLM method states that “***When discrete strata are identified, each is treated as a separate material so that fibers are first quantified in that layer only, and then the results for each layer are combined to yield an estimate of asbestos content for the whole sample.” This language has led to considerable confusion as to how to analyze multi- layered samples for NESHAP purposes. EPA published a clarification regarding the analysis of multi-layered systems in the January 5, 1994 Federal Register. This clarification basically stated that all multi-layered systems except for wall systems where joint compound was used only at the joints and nail holes must be analyzed as separate materials, and results were not allowed to be combined to determine average asbestos content (continuing the policy that dilution of an asbestos- containing material is not allowed). The Environmental Protection Agency has received many questions about analyzing multi-layered systems for asbestos content to determine the applicability of the asbestos NESHAP since its January 5, 1994 clarification (59 FR 542). This clarification reiterates EPA’s position for analysis of multi-layered samples for applicability of the asbestos NESHAP. This clarification applies to all multi-layered systems (other than wallboard systems where asbestos-containing joint compound is used only at the joints and nail holes) under both the NESHAP A-162 and the Asbestos Hazard Emergency Response Act (AHERA) (40 CFR Part 763) programs. Any source sending multi-layered bulk samples to a lab may request that certain sample(s) or portions of sample(s) be composited for analysis first (to potentially reduce time and cost of sampling). (Note: A composite sample does not mean that multiple samples may be composited into one sample. It means that multiple layers of one core sample may be composited for analysis.) If this alternative method is chosen, then the following requirements must be followed. To analyze the composite sample, the procedures in EPA/600- 93/116 “Method for the Determination of Asbestos in Bulk Building Materials” (“the Method”), specifically Section 2.3 “Gravimetry,” must be _— used. Additionally, for the composite sample, the recommendations in Appendix D of the method must be followed. This procedure is consistent with the procedures outlined in 40 CFR Part 763, Appendix E to Subpart E (formerly Appendix A to Subpart F), which is referenced in the asbestos NESHAP (40 CFR 61.141 and 61.146), but the procedures in the new method are more clear. EPA finds that this method is an acceptable alternative method of compliance under section 61.13(h)(1)(ii). EPA intends to amend the asbestos NESHAP in the near future to refer specifically to these procedures. When using the gravimetric procedures, the result may be recorded as percent asbestos by weight. A-163 If the result of the composite analysis shows that the average content for the multi-layered system (across the layers) is greater than one percent, then the multi-layered system must be treated as asbestos- containing and analysis by layers is not necessary. If the result of the composite sample analysis indicates that the multi-layered system as a whole contains asbestos in the amount of one percent or less, but greater than none detected, then analysis by layers is required to ensure that no layer in the system contains greater than on percent asbestos. If any layer contains greater than one _ percent asbestos, that layer must be treated as asbestos- containing. This will have the effect of requiring all layers in a multi-layered system to be treated as asbestos-containing if the layers can not be separated without disturbing the asbestos- containing layer. Once any one layer is shown to have greater than one percent asbestos, further analysis of the other layers is not necessary if all the layers will be treated as asbestos-containing. If several of the layers will be removed without removing the entire system, then all layers that will be disturbed must be analyzed. This includes the material being removed; however, the material being removed may be analyzed using the composite analysis procedures. Please note that the same requirements to perform point counting stated in our May 8, 1991 clarification (see enclosed memorandum) still apply for any layers being analyzed individually. [Page 65244] Dated: September 28, 1995. A-164 Richard Biondi, Acting Director, Manufacturing, Energy, and Transportation Division, Office of Compliance. [FR Doc. 95-30790 Filed 12-18-95; 8:45 a.m.] e BILLING CODE 6560-50-P 4 A-165 § DOCUMENT 13 2006 WL 3913457 (S.D.Cal.) United States District Court, S.D. California. UNITED STATES of America, Plaintiff, Vv. SAN DIEGO GAS & ELECTRIC COMPANY, et al., Defendants. No. 06 CR 0065 DMS. Nov. 21, 2006. ORDER GRANTING MOTION TO DISMISS COUNTS 1, 2, 3 AND 5 OF THE INDICTMENT FOR FAILURE TO STATE AN OFFENSE INVOLVING JURISDICTIONAL AMOUNT OF "REGULATED" ASBESTOS-CONTAINING MATERIAL A-166 2006 WL 3913457 (S.D.Cal.) United States District Court, S.D. California. UNITED STATES of America, Plaintiff, V. SAN DIEGO GAS & ELECTRIC COMPANY, et al., Defendants. No. 06 CR 0065 DMS. Nov. 21, 2006. ORDER GRANTING MOTION TO DISMISS COUNTS 1, 2, 3 AND 5 OF THE INDICTMENT FOR FAILURE TO STATE AN OFFENSE INVOLVING JURISDICTIONAL AMOUNT OF "REGULATED" ASBESTOS-CONTAINING MATERIAL DANA M. SABRAW, United States District Judge. *1 Defendants move to dismiss four counts of the Indictment for failure to state an offense. At issue are the Government's allegations regarding “work practice" violations, stemming from Defendants’ removal of asbestos containing materials. Because the work practice standards apply only to "regulated" asbestos containing material, and the Indictment does not charge the essential elements of such an offense, it must be dismissed. I. BACKGROUND On January 11, 2006, a federal grand jury returned the Indictment in this case. The Indictment stems A-167 from San Diego Gas & Electric Company's ("SDG & E") removal of asbestos pipe coating material from an underground pipeline allegedly in violation of work practice standards promulgated by the Environmental Protection Agency ("EPA"). SDG & E owned a sixteen acre parcel of land at 1350 San Altos Place in Lemon Grove, an area known as the Encanto Property. The Encanto Gas Holder Facility was located on the Property. The facility is a former natural gas storage and delivery facility comprised primarily of a compressor station and 9.23 miles of underground gas pipeline. In June 1999, SDG & E entered into a tentative agreement to sell the Property to a developer. The sale required SDG & E to demolish the Encanto Facility and remove the underground pipeline. The pipe, comprising the pipeline, was wrapped in coal tar insulation ("pipe wrap") that contained six discrete layers of material, one or more of which contained asbestos. The removal of the pipeline began in September 2000, and was completed by early 2001. Defendant Kyle Rheubottom served as_ project superintendent of the general contractor hired by SDG & E to demolish the Encanto Facility. Defendants Jacquelyn Mc Hugh and David Joseph Williamson are SDG & E employees who oversaw the demolition project. Both the County, through the San Diego County Air Pollution Control District ("APCD") and the San Diego County Department of Environmental Health ("DEH"), and the United States investigated the Encanto demolition. On August 30, 2005, the County filed a civil lawsuit on behalf of the APCD and DEH A-168 alleging that Defendants violated the asbestos work practice standards during the removal of the pipeline. The County dismissed the lawsuit seven months later, after the United States returned the Indictment in this case. A. Regulated Asbestos Containing Material ("RACM") The regulatory scheme promulgated by the EPA subjects the removal of certain "asbestos containing materials," known as "ACM," to environmental oversight and _ regulation. Not all materials containing asbestos, and not all demolition projects, are regulated. To be "regulated," the material and project must exceed certain thresholds regarding project size and asbestos content. Three conditions must exist: First, the amount of ACM to be removed must exceed (i) 260 linear feet on pipes, (ii) 160 square feet on other facility components, or (iii) 35 cubic feet where length or area cannot be measured (40 C.F.R. § 61.145(a)); Second, the quantity of asbestos fibers in the material must exceed 1% as determined by a “specified" test method (40 C.F.R. § 61.141); and Third, the ACM must be "friable," that is, it may be crumbled by hand pressure creating dust, or if initially "nonfriable," the ACM must be (i) "Category I" ACM that has become friable, (ii) Category I ACM that will be or has been subjected to certain acts of disturbance during the removal process (e.g., sanding, grading, cutting, or abrading), or (iii) "Category II" ACM that has a "high probability" of becoming friable due to acts of disturbance during the removal process. (/Jd.) The EPA desires to regulate asbestos that is friable or A-169 may become friable because asbestos fibers may be released when asbestos is in a friable state, possibly causing incurable and fatal lung diseases to those who inhale such fibers. *2 Accordingly, if the asbestos content is greater than 1 % as determined by the specified test, and the ACM is friable or of a qualifying nonfriable nature, then the material is deemed to be "Regulated Asbestos Containing Material," or "RACM." Further, if the project quantity threshold is met (e.g., over 260 linear feet of pipe) and the material is RACM, then the demolition project is subject to the asbestos work practice standards. B. The Indictment The Government contends Defendants knew the asbestos work practice standards applied to the demolition of the Encanto Facility, but nonetheless engaged in a coverup and knowingly failed to observe applicable work practice standards. The Indictment charges Defendants with five counts, four of which allege violations of work practice standards during the removal of alleged RACM. [FN1] FN1. Count Four of the Indictment alleges false statement under Title 18 U.S.C. § 1001, against Defendants SDG & E and David Williamson. Defendants' motion to dismiss the false statement count is addressed in a separate order. The work practice counts allege Defendants A-170 = conspired to violate the work practice standards, failed to provide written notice to the EPA before removing the RACM, failed to adequately wet the RACM during removal, and failed to place the RACM in leak-tight wrapping. Specifically, Count 1 alleges Defendants knowingly conspired to "violate the asbestos work practices; in violation of Title 42, United States Code, Sections 7412 and 7413(c)(1)." (Indictment at 3 .) It further alleges Defendants "agreed [among themselves] that when communicating with government inspectors ... they would describe the coating removed from the underground piping as not federally regulated asbestos containing material [RACM]." (/d.) Count 2 alleges Defendants "failed to provide advance written notice to the U.S. Environmental Protection Agency ... of the removal of over 260 linear feet of regulated asbestos containing material [RACM], as required by 40 C.F.R. Section 61.145(b)." (Indictment at 6.) Count 3 alleges Defendants "failed to adequately wet the regulated asbestos containing material (RACM) during removal, as required by 40 C.F.R. Section61.145(b)." (Indictment at 6.) Count 5 alleges Defendants "failed to contain the regulated asbestos containing material (RACM) in a leak-tight wrapping, as required by 40 C.F.R. Section 61.145(c)." (Indictment at 7.) The Indictment alleges only one of the three conditions relating to project size and asbestos content, specifically, that Defendants were "owner|s] or operators of an asbestos demolition operation involving over 260 linear feet" of pipe. It does not allege the elements of RACM. Rather, it simply charges that the material is "regulated asbestos A-171 containing material (RACM)." C. The Bill of Particulars Defendants moved for a bill of particulars on August 11, 2006. The Court granted the motion and ordered a bill of particulars regarding the category of ACM involved and whether the asbestos was regulated on the pipe or as a result of the method of removal. On September 8, 2006, the Government filed its bill of particulars, stating its "now ... official position" is that the pipe wrap is Category II ACM, although it concedes that at various earlier times county inspectors had taken the position that the material was Category I. (Bill of Particulars at 5.) Some inspectors initially thought the pipe wrap was Category I ACM, but later concluded “it could be Category II or a combination" of both. (/d.) Regardless, the bill of particulars makes clear that the pipe wrap contained multiple layers of material and was tested for asbestos under the following method: *3 If a material believed to contain asbestos consists of several distinct and dissimilar layers, each layer must be separately analyzed for its asbestos content. If any of the layers, standing alone, meets the definition of regulated asbestos containing material (i.e., over 1 % asbesios and friable), then the entire material is deemed to be _ regulated asbestos containing material, and the NESHAP work practice standards are applicable to the project. Similarly, if nonfriable asbestos containing material is mixed with friable asbestos containing material, the resulting mixture must be treated as friable asbestos A-172 containing material. (Bill of Particulars at 9) (emphasis added) (citations omitted). Accordingly, under the Government's test method and present theory of prosecution, if any layer of the pipe wrap contained more than 1% asbestos and the asbestos was friable or had a high probability of becoming friable due to acts of disturbance during the removal process, the pipe wrap would be deemed RACM and its removal would be subject to the work practice standards. D. Grounds for Dismissal Defendants seek dismissal on two grounds: (1) "[t]he Indictment fails to state an offense, as a matter of law, because it does not satisfy the jurisdictional predicate of demonstrating that the Encanto pipe coating material contains" more than 1% asbestos; and (2) the Government cannot "belatedly cure this jurisdictional defect" because it did not use the test method required by law and "no intact multi-layered material reinains," thus depriving Defendants of due process and “the ability to vindicate themselves using the only scientific test method authorized by law to demonstrate that their conduct is lawful." (Motion to Dismiss at 2-3.) The Government disputes the Indictment is defective, asserting it adequately "tracks the language of the statute...." (Response at 45.) The Government further contends that while it did not use the test method cited by Defendants, there is no due process violation, as_ sufficient samples exist from which Defendants (and the Government) can--under any applicable test method- -determine if the pipe wrap contains over 1% A-173 y #3 asbestos. [FN2] FN2. Because the Court finds, as developed below, that the Indictment is fatally flawed for failing to allege all essential elements of the offenses charged, the Court declines to address Defendants' due process arguments. II. LEGAL STANDARD Federal Rule of Criminal Procedure 12(b) provides: "Any defense, objection, or request which is capable of determination without a trial of the general issue may be raised before trial by motion." Fed.R.Crim.P. 12(b). "In ruling on a pre-trial motion to dismiss an indictment for failure to state an offense, the district court is bound by the four corners of the indictment." United States _v. Boren, 278 F.3d 911, 914 (9th Cir.2002) (citations omitted). The court "should not consider evidence not appearing on the face of the indictment." Id. An indictment must contain a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). An indictment also "must set forth the elements of the offense charged and contain a statement of the facts and circumstances that will inform the accused of the elements of the specific offense." United States v. Fitzgerald, 882 F.2d 397, 399 (9th Cir.1989) (citing United States v. Martin, 783 F.2d 1449, 1452 (9th Cir.1986). Under Rule 12(b)(2), a court is authorized to dismiss “an A-174 indictment if its allegations do not suffice to charge an offense," but not if it merely fails to contain sufficient evidence "to prove the _ indictment's charges." United States v. DeLaurentis, 230 F.3d 659, 660-61 (8rd Cir.2001) (reversing dismissal where indictment "substantially track[ed] the language of the statute") (citing United States v. Sampson, 371 U.S. 75, 78-79 (1962)). "{I]f properly challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment." United States v.Qmer, 395 F.3d 1087, 1088 (9th Cir.2005). Iii. DISCUSSION *4 To sufficiently charge a violation of the work practice standards, the Government must allege, among other things, facts regarding project size and RACM. Applied to this case, the Government must allege: (1) the pipeline is of a certain size (i.e ., at least 260 linear feet) (40_C.F.R. § 61.145(1)); (2) the pipe wrap contains ACM that is more than 1% asbestos as determined by a specified test method (40 C.F.R. § 61.141); and (3) the ACM is friable or Category I or II nonfriable ACM. (Id). Defendants' motion focuses on the issue whether’ the Government's failure to allege that the pipe wrap contains more than 1% asbestos as determined by a specified test is a defect that warrants dismissal. Defendants also argue in a related motion that the Government's "internally inconsistent positions" A-175 regarding the nature of ACM involved warrants dismissal._[FN3] Because Defendants challenge the sufficiency of the Indictment in the present motion, both elements of RACM are addressed in this Order. FN3.See Motion to Dismiss Counts 1, 2, 3 and 5 of the Indictment on Due Process Grounds (Internally Inconsistent Government Positions Re Nature of ACM) (Doc. No. 159). Defendants filed that motion and eight other substantive motions, including the present motion, on the same date. All of the motions were heard on October 27, 2006. In this Order, the Court addresses only the issue whether the Indictment fails to allege essential elements, as this issue is dispositive. The remaining motions, except as noted in footnote 1, supra, are denied as moot. A. First Element of RACM: More than 1% Asbestos as Determined by Specified Test Method In concluding that the pipe wrap meets the 1% threshold amount, Defendants argue the Government relied on an improper test method to test bulk or multi-layered materials, one that was never properly enacted by the EPA. As set out in the bill of particulars, under the test method employed by the Government, each of the six layers of the pipe wrap was analyzed, and if any layer included more than 1% asbestos, the entire system was deemed to be regulated. (Bill of Particulars at 9.) This Order refers to the Government's test method as the "single-layer" test method. A-176 ®t pate a a ee Ole ee ee ee ee we? ene ef oe pe ee ee eS ee ee ee, a Pee ae iene he ole to aa DEE ee EP OR, Fee NTE ELLY Me ES hehe ee ges Gene WSR Leta tig ae entra ae Bn ale Tee a oo ee According to Defendants, the correct test method-- the one the EPA sought to replace with the single- layer method--requires the Government first to calculate the asbestos content of each layer, and then to average the results to determine the quantity of asbestos for the whole system. The whole system is regulated only if the average exceeds 1 percent. This Order refers to this test method as the “averaging” test method. Defendants argue the Government's reliance on the wrong test method requires dismissal of the work practice counts. Defendants maintain the test method used by the Government--the single-layer method--is improper because the EPA failed to follow the rulemaking procedures’ set out in_ the Administrative Procedures Act ("APA") when promulgating that test method. According to Defendants, until and unless the EPA complies with rulemaking procedures, the single-layer method is not binding and cannot be used to support a criminal prosecution. In other words, a criminal prosecution for violation of work practice standards must be based on the averaging test method where, as here, multiple layers of ACM _ are _ involved. The Government disagrees, asserting the EPA need not have complied with rulemaking procedures because the single-layer test method is merely a "clarification" of the averaging test method. *5 A review of the history of the regulation at issue and the rulemaking requirements of the APA is helpful to determining whether the single-layer test method is subject to the APA's rulemaking A-177 requirements. If it is, it is not binding and does not replace the original (averaging) test "specified" in the regulation, and the Government must prosecute (and prove to the grand jury) its theory of the case under the averaging test method. 1. History of Asbestos NESHAP Regulation The Clean Air Act authorizes the EPA to identify and regulate hazardous pollutants. 42 U.S.C. § 7412. Pursuant to § 7412, the EPA enacted the National Emission Standards for Hazardous Air Pollutants ("NESHAP", setting out permissible emission standards for identified pollutants, one of which is asbestos. The asbestos NESHAP regulation was first promulgated in 1973. See 38 Fed.Reg. 8826, 8829-30 (Apr. 6, 1973). Among other things, the asbestos NESHAP requires owners and operators of asbestos containing facilities to follow certain procedures (i.e., work practices) when removing regulated asbestos materials. 40 C.F.R. Part 61, Subpart M, section 61.145. Violation of NESHAP work practices constitutes a violation of the Clean Air Act. 42 U.S.C. § 7412(c) & (e). Since 1973, the asbestos NESHAP has been amended several times, in 1975, 1984, 1990 and 1994. Although the 1973 NESHAP regulation sets out the basic framework, it remained quite undeveloped until 1990 when the EPA adhered to APA rulemaking requirements and made substantial changes to the NESHAP regulation. Among other things, the 1990 NESHAP amendments classified nonfriable asbestos as either Category I or Category II asbestos-containing materials. 55 Fed. Reg. 48406, A-178 48409 (Nov. 20, 1990). In addition, the amendments replaced the weight-based standard to determine asbestos quantity in materials (1 % by weight) with a two-dimensional area-based standard (1 % by area). 55 Fed.Reg. 48406, 48410 (Nov. 20, 1990). To determine whether a material includes more than 1% asbestos by area, the EPA in its 1990 NESHAP amendments adopted a test method known as Polarized Light Microscopy ("PLM"), which was set forth in and borrowed from the Toxic Substances Control Act ("TSCA") of 1982 and the Asbestos Hazard Emergency Response Act ("AHERA") of 1987. 47 Fed.Reg. 23360, 23376 (May 27, 1982); 52 Fed.Reg. 41836, 41837 (Oct. 30, 1987). Specifically, the 1990 NESHAP provides that asbestos containing’ material is regulated if it contains "more than 1 _ percent asbestos as determined using the methods specified in appendix E, subpart E, 40 C.F.R. part 763, section 1, Polarized Light Microscopy." 40 C.F.R. § 61.141 (emphasis added). With respect to bulk materials, the "specified" test method in the 1990 NESHAP provides for an averaging of the combined layers to determine asbestos content: Bulk samples of building materials taken for the identification and quantitation of asbestos are first examined for homogenity at low magnification with the aid of a stereomicroscope. The core sample may be examined in its container or carefully removed from the container onto a glassine transfer paper or clean glass plate. If possible, note is made of the top and bottom orientation. When discrete strata are identified, each is treated as a separate material so that fibers are first tdentified and quantified in A-179 that layer only, and then the results for each layer are combined to yield an estimate content for the whole sample. *6 40 C.F.R. part 763, section 1 (emphasis added). In response to the 1990 NESHAP amendments, the EPA received numerous questions regarding bulk material analysis. In 1994, the EPA issued a "clarification" to its (averaging) test method. 59 Fed.Reg. 542 (Jan. 5, 1994). The EPA stated: "when a sample consists of two or more distinct layers or materials, each layer should be treated separately and the results reported by layer (discrete stratum)." Id. (emphasis added). The EPA's 1994 clarification, however, did not eliminate questions. In 1995, the EPA issued another clarification, explaining: "all multi-layered systems ... must be analyzed as separate materials, and the results were not allowed to be combined to determine average asbestos content ... 60 Fed.Reg. 65243 (Dec. 19, 1995) (emphasis added). Defendants argue these "clarifications," resulting in the single layer test method, constitute impermissible rulemaking. 2. The Administrative Procedures Act “The APA empowers federal courts to ‘hold unlawful and set aside agency action, findings, and conclusions found to be ... without observance of procedure required by law...." ' New York State Electric & Gas Corp. v. Saranac Power Partners, L.P., 267 F.3d _ 128, 131 (2nd Cir.2001) (citations omitted). "The APA creates a statutory scheme for informal oor notice-and-comment rulemaking A-180 reflecting ‘judgment by Congress that the public interest is served by a careful and open review of proposed administrative rules and regulations.’ " Alcairaz v. Block, 746 F.2d 593, 610 (9th Cir.1984) (citation omitted). "In most instances, agency '‘rules' must be subjected to a notice and comment period before taking effect." State Electric & Gas Corp., 267 F.3d at 131 (citing 5 U.S.C. § 553(c); Alcatraz, 764 F.2d at 610-611. "However, the APA excepts rules that are merely interpretive from this general procedure." State Electric & Gas Corp., 267 F.3d at 131;5 U.S.C. § 553(d)(A). "[A]n agency may not escape the notice and comment requirements by labeling a major substantive legal addition to a rule a mere interpretation." Applachian Power Co. _v. Environmental Protection Agency, 208 F.3d 1015, 1024 (D.C.Cir.2000) (citation omitted). Generally, a "substantive rule ‘has the force of law,' while an interpretive rule is 'merely a clarification or explanation of an-existing statute or rule' and is ‘issued by an agency to advise the public of the agency's construction of the statutes and rules which it administers.' " La Casa Del Convaleciente uv. Sullivan, 965 F.2d 1175, 1178 (1st Cir.1992). A rule is substantive if it "creates rights, assigns duties, or imposes obligations, the basic tenor of which is not already outlined in the law itself...." Dia Navigation Company, Ltd. v. Pomeroy, 34 F.3d 1255, 1264 (3rd Cir.1994) (citations omitted). On the other hand, a rule is merely interpretive "if it attempts to clarify an existing rule but does not change existing law, policy, or practice." Rocky Mountain Helicopters, Inc. uv. Federal Aviation Claims, 971 F.2d 544, 546-7 (10th Cir.1992). A substantive or legislative rule is A-181 he subject to the rulemaking requirements of the APA. 3. The Promulgation of the "Single-Layer" Method tis Legislative in Nature and Subject to the APA's Rulemaking Requirements *7 The single-layer method, as set out in the 1994 and 1995 clarifications, imposes new obligations on the regulated community by expanding the scope of regulated asbestos containing material. Under the averaging test method, to determine whether a multi-layered material contains more than 1% asbestos, a lab technician must (1) quantify the amount of asbestos fibers in each layer; and then (2) combine the results of each layer to determine "an estimate of asbestos content for the whole sample." The material is not regulated unless the combined result yields more than 1 percent asbestos. The single-layer test method eliminates the second prong of the test. It provides that the material is regulated if any layer contains more than 1 percent asbestos. This test clearly expands the scope of regulated asbestos containing material because, undoubtedly, some materials previously considered not regulated under the averaging test method would be swept into the regulation under the single- layer test method. The clarifications, therefore, impose new obligations and duties on the regulated community where none existed prior to the amendment. The EPA itself acknowledged that the two test methods have significant differences. In the 1995 amendments, the EPA explained that its "unwritten A-182 policy" regarding analysis of bulk materials has been that "each layer in a multi-layered system would be analyzed as a separate material (no averaging or dilution by combining layers of asbestos-containing material with nonasbestos-containing material was allowed.)" 60 Fed.Reg. 65243. The clarifications, therefore, attempt to carry out this unwritten policy without rulemaking procedures. Moreover, in a Notice of Advisory issued on August 1, 1994, the EPA announced an "improved test method" for bulk sample analysis for both the AHERA and NESHAP regulations. 59 Fed.Reg. 38970 (Aug. 1, 1994). In addition to introducing new scientific techniques for identifying asbestos fibers, the improved test method required that laboratories "analyze the individual strata or layers and report a single result for each layer." Jd. Thus, regardless of which scientific technique is used to detect asbestos fibers (PLM or otherwise), laboratories are no longer permitted to average cr combine the amount of fibers in each layer to determine the asbestos quantity of the whole system. The EPA explains the previous method for analyzing bulk samples--the averaging test method--is disfavored because "multi-layered samples which may contain asbestos in a single layer may have been reported by laboratories as nonasbestos-containing." Jd. The averaging test method, therefore, had the effect of diluting the quantity of asbestos present in a system, thereby preventing the application of NESHAP in some instances. The new test method was intended to address this shortcoming: "a multi-layered sample which A-183 previously was determined to be nonasbestos- containing may now have layers which will be classified as asbestos-containing based on the presence of asbestos in greater than 1 percent." 59 Fed.Reg. 38970. It is clear, therefore, that the EPA did not consider the change a mere interpretation. Rather, the EPA's description of the resulting differences between the two tests suggests a substantive change. The Notice of Advisory indicates the impetus behind the change was not to clarify ambiguities; rather, it was to expand the scope of regulated asbestos material. *8 The Government nevertheless argues the clarifications are merely interpretations of the averaging test method. Citing the key language describing the averaging test method ("When discrete strata are identified, each is treated as a separate material so that fibers are first identified and quantified in that layer only, and then the results for each layer are combined to yield an estimate of asbestos content for the whole sample"), the Government argues that this. particular language has been a source of confusion in the regulated community. Specifically, according to the Government, it is unclear "how the first clause and the second clause of the sentence fit together in the regulatory scheme," whether "a value of greater than 1% on both a single strata AND the whole [is] required for NESHAP applicability, or whether a value of greater than 1% under either clause could result in NESHAP applicability." (Response at 47- 48) (original emphasis). The Government contends the 1994 and 1995 clarifications were intended to address these ambiguities. Citing Chevron U.S.A. A-184 Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), the Government argues the EPA's interpretation is reasonable and, therefore, entitled to deference. (Jd. at 47-49.) These arguments are unpersuasive for two reasons. First, even assuming the language of the averaging test method is ambiguous, the clarifications do not address the ambiguities identificd by the Government. Nor do the clarifications address any ambiguities that may be read into the statute. Rather, the clarifications have the effect of fashioning a new test method, by discarding the second step of a two-step analysis. Second, even assuming the clarifications constitute an interpretation of an ambiguous regulation, it is unclear whether Chevron deference is appropriate in the criminal context. Under Chevron, an agency's interpretation of ambiguous statutory language is entitled to deference because of the agency's delegated authority to administer the statute. 467 U.S. 837. The same _ consideration underlies deference to an agency's interpretation of its own regulation. Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994). Several courts, however, have questioned whether such deference is appropriate in the criminal context. See United States v. Douglas, 974 F.2d 1046, 1048, n. 1 (9th Cir.1992); United sities yy Meio « SA) Se 1O7T. 3677 (D.C.Cir.1987). Having concluded that the clarifications do not address any alleged ambiguity in the underlying regulation, deference is inappropriate under the circumstances in any event. Finally, the Government argues that under the A-185 "credible evidence" rule, set forth at 40 C.F.R. 61.12, it is entitled to use any credible evidence to establish that Defendants committed the crimes charged. (See Supplemental Response.) Under this rule, the Government believes it is not limited to a specific test method, but may use any credible evidence to establish a violation. The credible evidence rule, however, is an evidentiary-based rule that assumes a properly alleged indictment. Accordingly, whether the Government can prove at trial that the pipe wrap contains more than 1% asbestos under either the averaging or single-layer test method is irrelevant to whether the defect in the Indictment constitutes a "fatal flaw" requiring dismissal. *9 The single layer test method is therefore a legislative rule, the promulgation of which requires adherence to rulemaking procedures mandated by the APA. Because the single-layer test method was not subject to such rulemaking procedures, it is not binding and does not replace the earlier promulgated averaging test method. Accordingly, it may not provide the basis for the Government's prosecution. The Government's failure to allege that the pipe wrap contains more than 1% asbestos as determined by the "specified" 1990 NESHAP test method renders the Indictment defective. Moreover, the failure to allege this element illustrates the flaw in the Indictment, as the grand jury never was presented with evidence that the pipe wrap contained more than 1 % asbestos as determined by the averaging test method. It is undisputed the Government proceeded under the single-layer test method. Therefore, the grand jury could not have found that the pipe wrap contained more than 1% A-186 Rr asbestos under the specified test method. B. Second Element of RACM: Category of ACM The second element of RACM concerns the nature of ACM involved. The NESHAP specifies four categories of RACM: (1) friable asbestos material; (2) Category I nonfriable ACM that has become friable; (3) Category I nonfriable ACM that will be or has been subjected to sanding, grading, cutting, or abrading; and (4) Category II nonfriable ACM that has a “high probability" of becoming friable due to "forces expected to act on the material in the course of demolition or renovation...." 40 C.F.R. § 61.141. Here, the Indictment does not allege the particular category of RACM involved. | An allegation regarding the nature of ACM requires the Government to show, and the grand jury to find, that the material falls within one or more of the four defined categories of RACM. The category of ACM also determines what evidence the Government must present to obtain an indictment. For example, if the material contains friable asbestos, the Government must introduce evidence that the material, "when dry, can be crumbled, pulverized, or reduced to powder by hand pressure." 40 C.F.R. § 61.141. If Category I material is involved, the Government must show that the material has either "become friable," or “will be or has been subjected to sanding, grinding, cutting, or abrading." Jd. On the other hand, if the material is Category II, the Government must show that the material "has a high probability of becoming or has _ become crumbled, pulverized, or reduced to powder by the A-187 forces expected to act on the material in the course of demolition." Id. "An indictment which specifically states all elements of the offense [ ] ensures that the grand jury charged such an offense and that critical parts of the charged offense were not subsequently contributed by the prosecutor alone." United States v. Diecid F.2d 53&, 546-7 (5th Cir.1979). Here, it is unclear whether the grand jury -considered evidence regarding any or all of the categories of ACM because the Indictment does not allege this element. C. The Government's Failure to Allege the Elements of RACM Requires Dismissal *10 An indictment must allege each essential element of the offense to insure that a defendant does not face punishment for a crime except "on a presentment or indictment of a Grand Jury." See United States v. Vinyard, 266 F.3d 320, 325 (4th Cir.2001); see alsoU.S. Const. Amend. V ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a _ presentment or indictment of a Grand Jury ..."). Therefore, an indictment that fails to allege an essential element of the offense cannot be rescued by a bill of particulars. Russell v. United States, 369 U.S. 749, 770 (1962); United States v. Rosi, 27 F.3d 409, 414 (9th Cir.1994) ("It is well-settled [ ] that a bill of particulars cannot cure an _ otherwise _ invalid indictment."). This is so because the validity of an indictment depends on whether the grand jury has found probable cause as to each element of the A-188 offense. United States v. Hooker, 841 F.2d 1225, 1227 (4th Cir.1988). As discussed, to sufficiently charge a violation of the work practice standards, the Indictment must allege not only that the demolition project meets the size threshold (i.e., over 260 linear feet), but also that the asbestos containing material contains more than 1% asbestos as determined by the specified test method and that the material falls within one of four defined categories of RACM. Here, the Indictment fails to allege these elements, let alone facts supporting a conclusion that the pipe wrap is RACM and subject to work practice standards. The Indictment neither discloses the test method relied on by the Government, nor that the pipe wrap actually meets the threshold requirement of more than 1% asbestos. That the Government in fact relied on a test method, other than as specified in the 1990 NESHAP, highlights the Indictment's defect. Additionally, the nature of material involved, whether i¢ is friable, or Category I or Category II nonfriable ACM, is not alleged. Defendants argue dismissal is required because the Indictment's deficiency is "jurisdictional" in nature. (Motion at 38.) Although Defendants (and other courts) have characterized the failure to allege an essential element of an offense as "jurisdictional," the Supreme Court has held that "analysis of that issue in terms of 'jurisdiction' [is] mistaken." United States v. Cotton, 5385 U.S. 625, 631 (2002) (citations omitted). The objection that the indictment does not charge a crime goes "to the merits of the case." Jd. at 630. (citations omitted). In any event, no matter how A-189 the defect is characterized, dismissal is required if an indictment fails to allege an essential element and the defect is timely raised. Omer, 395 F.3d at 1088;United States v. Velasco-Medina, 305 F.3d 839,846-47 (9th Cir.2002); United States v. Du Bo, 186 F.3d 1177, 1179-81 (9th Cir.1999). It is well-established that "if properly challenged prior to trial, an indictment's complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of the indictment." Omer, 395 F.3d at 1088 (trial court wrongfully denied defendant's pre-trial motion to dismiss based on indictment's failure to allege materiality). Similarly, in Du Bo, the Ninth Circuit reversed a defendant's conviction because the indictment was "fatally flawed" for failing to allege the necessary mens rea. Du Bo, 180 F.3d at 1179. The court in Du Bo held the failure to properly allege the elements of the offense "constitutes a fatal defect that cannot be cured through jury instructions, because a ‘completely missing essential element' leaves ‘nothing for the petit jury to ratify." ld. "Failing to enforce this requirement would allow a court to 'guess as to what was in the minds of the grand jury at the time they returned the indictment....'" Jd. (citation omitted). [FN4] FN4. In Velasco-Medina, the court limited the remedy of automatic dismissal to cases where, as here, the defect in the indictment is raised pretrial. Velasco-Medina, 305 F.3d at 846. "Untimely challenges to the sufficiency of an indictment [raised for the first time on appeal] A-190 are reviewed under a more liberal standard," that of plain error. Jd. Thus, instead of automatic dismissal, the court asks whether “an error or omission in an indictment worked to the prejudice of the accused." Id. at 847. Because Defendants move to dismiss pretrial, they need not show prejudice. Du Bo, 186 F.3d at 1179. *11 The Government cites United States ov. Fitzgerald, 882 F.2d at 399, for the proposition that “an indictment which tracks the words of the statute charging the offense is legally sufficient so long as it sets forth unambiguousiy all elements to constitute the offense." (Response at 44.) The problem with this argument is that while the Indictment tracks a portion of the "statute," it does not track the entire statute. See United St Pickett, 353 F.3d 62, 66 (D.C.Cir.2004) (overturning conviction where indictment did not allege all elements of offense because it tracked only a portion of statute). In Pickett, the government attempted to charge an offense under 18 U.S.C. § 1001(a)(2), for making a false statement in a matter within the jurisdiction of the legislative branch of the government of the United States. [FN5] 353 F.3d at 66. Pickett challenged the indictment, arguing the indictment's allegation that the false statement was "within the jurisdiction of the _ legislative branch" was insufficient because it failed to allege the charged conduct fell within the specifications of 18 U.S.C. § 1001, subsections (c)(1) or (2), which require that the statement be made during administrative matters or an investigation or review of Congress. [FN6]/d. The A-191 F - 1 ie government argued that the indictment was sufficient because it tracked the language of the statute, and that the subsections in question were not "elemental." Jd. The government apparently argued the subsections merely defined categories of statements that were within the jurisdiction of the legislative branch. The court disagreed, noting that: "an indictment that charges a false statement made in a mater within the jurisdiction of [the legislative] branch without alleging that it was within one of the statutory categories has not charged an offense." Id. The court also recognized the general proposition--as argued by the government--that "federal laws usually list all offense elements in a _ single sentence," but pointed out that Section 1001 was an exception to the general rule. Jd. at 67-68 (concluding the "requirements of 1001i(c) are elements" of the offense). Because the indictment omitted language "essential to the definition of the offense," the court dismissed the indictment. Id. at 67 (emphasis added). FN5. 18 U.S.C. § 1001(a)(2) provides: "(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully--... (2) makes any materially false, fictitious, or fraudulent statement or representation ... shall be fined under this title or imprisoned not more than 5 years, or both." FN6.18 U.S.C. § 1001(c)(1) & (2) provide: "(c) With respect to any matter within the A-192 jurisdiction of the _ legislative branch, subsection (a) shall apply only _ to--(1) administrative matters, including a claim for payment, a matter related to the procurement of property or _ services, personnel or employment practices, or support services, or a document required by law, rule, or regulation to be submitted to the Congress or any office or officer within the legislative branch; or (2) any investigation or review, conducted pursuant to the authority of ar’ committee, subcommittee, commission .¢ office of the Congress...." The Fitzgerald case, cited by the Government, is also instructive. There, the statute at issue involved "assault resulting in serious bodily injury" under 18 U.S.C. § 113(f). [FN71882 F.2d at 399. Fitzgerald argued the indictment was defective because it lacked factual allegations "defining" the element of serious bodily injury. /d. The court disagreed, holding the indictment was sufficient because it tracked the statute, alleging "the date, location and victim of the offense, and it specifically charge[d] that the assault perpetrated by Fitzgerald directly resulted in the serious bodily injury of the named victim." 882 F.2d at 399. The court further held that the element of serious bodily injury is a "common sense" determination for the jury to decide. Jd. n. 2. In other words, simply alleging "serious bodily injury" is sufficient because the term is readily understood in its ordinary sense. It need not be further defined. FN7.18 U.S.C. § 113(f), states: "Whoever, A-193 within the special maritime jurisdiction and territorial jurisdiction of the United States, is guilty of an assault shall be punished as follows: ... (f) Assault resulting in serious bodily injury, by fine of not more than $10,000 or imprisonment of not more than 10 years, or both." *12 In contrast, RACM is a term of art defined in a dense regulatory scheme. The elements of RACM (and the work practice standards) emerge only by an expedition through the Clean Air Act and the NESHAP regulatory scheme, and a cobbling together of relevant regulatory provisions. To allow an indictment to stand that simply declares the material to be "RACM," without alleging the elements "essential to the definition of [an] offense" based on RACM, Pickett, 353 F.3d at 67, and the facts and circumstances supporting such a conclusion, would be contrary to Du Bo: "Failing to enforce this requirement would allow a court to ‘guess as to what was in the minds of the grand jury at the time they returned the indictment." _[FN8] 180 F.3 at 1179. FN8. While it is undisputed the Government did not present evidence to the grand jury concerning the first element of RACM--more than 1% asbestos as determined by the test method specified in the 1990 NESHAP.--it is unclear what was presented to the grand jury regarding the second element of RACM, i.e., the nature of ACM. A-194 IV. CONCLUSION For these reasons, the Court dismisses without prejudice Counts 1, 2, 3 and 5 of the Indictment for failure to set forth unambiguously all elements of the charged offenses. All dates as to Defendants Kyle Rheubottom and Jacquelyn Mc Hugh are vacated, as all counts against these Defendants are dismissed. IT IS SO ORDERED. Not Reported in F.Supp.2d, 200€ WL 3913457 (S.D.Cal.) A-195 cf = a oe 5 > * ASE a yn, RE Pee eg ere SE ee ee eS ee ee ee ae A ee Ts, en cory Be eee Le ag Tae ee Peat eee 4 44 Defendants. ORDER CONCERNING SUMMARY JUDGMENT MOTIONS, OTHER MOTIONS AND SCHEDULING This cause coming to be heard on the motions for summary judgment filed by plaintiff State of Wisconsin and by defendant Harenda Enterprises, Inc. (HET), and upon the motions to strike filed by A-203 rat A as rats “ 4 7 : Seta ity sr Nea ee tok Nah ees Gas e S HEI, due notice having been given to all parties entitled thereto, the Court having been advised in the premises, the Court having held a hearing on November 1, 2004, and the parties having appeared by attorney Jeffrey M. Gabrysiak for the State of Wisconsin and by Mark W. Rattan for HEI, IT IS HEREBY ORDERED THAT: A. The motion for summary judgment filed by the State of Wisconsin on August 25, 2004 is denied for the reasons stated on the record at the hearing on November 1, 2004. a: The motion for summary judgment filed by HEI on June 17, 2004 is denied for the reasons stated on the record at the hearing on November 1, 2004. 3. HEIs Motion To Strike The State’s Reply Brief And Other Submissions filed on October 21, 2004 is denied for the reasons stated on the record at the hearing on November 1, 2004. 4. HEI’s Amended Motion To Strike The Affidavit Of Warren Merkel filed on October 26, 2004 is denied for the reasons stated on the record at the hearing on November 1, 2004. 5. The Court is adjourning a ruling on the issue whether two “clarifications” issued by the Environmental Protection Agency dated January 5, 1994 and December 19, 1995 were properly passed into rule by the proper rule making procedures. The issue will be resolved in accordance with a motion in A-204 eae RT eT ae aE ae TEN ee RIN ACPD tek Ket AOR ee DL OT Le OB TS EP Bey Te LOM GORA Sen WIENS QO TEN Oe deeded oe SOR Ya ne Re ot SP chee aye etre SE Ret vey SA a : tenn hon et Sy limine to be filed by HEI under the following briefing schedule. a. On or before November 30, 2004, HEI is to mail to the Court and opposing counsel its motion in limine, supporting brief and other papers on the above referenced issue. HEI is to include with the motion any related matters it believes the Court should address on this issue. b. On or before December 31, 2004, the State is to mail to the Court and opposing counsel its brief in opposition and other opposition papers to the motion 1n limine. C. On or before January 14, 2005, HEI is to file its final reply brief and other papers in support of the motion. 6. The Court will hear the motion in limine on either January 31, 2005 if another major trial the Court must hear settles or is otherwise resolved prior to January 31, 2005. Alternatively, the Court will hear the motion on April 25, 2005. 7: If the Court’s other major case does not settle or otherwise resolve prior to January 31, 2005, and if the parties hereto wish to have an alternate judge hear the motion in limine, the parties are to contact the Court’s clerk. A-205 8. The November 8, 2004 date for pre-trial submissions and the November 12, 2004 pre-trial conference are adjourned pending resolution of the motion in limine above. The Court will set a date for pre-trial submissions and a pre-trial conference at the January 31, 2005 or the April 25, 2005 hearing on the motion in limine. 9. Per a telephone conference between the Court and counsel convened on November 4, 2004, this matter is scheduled for a one-week trial commencing on June 6, 2005 at 1:00 p.m. Dated this 20th day of December, 2004. /s/ Kitty K. Brennan Honorable Kitty K. Brennan Circuit Court Judge THIS ORDER WAS DRAFTED BY: Mark W. Rattan Litchfield Cavo 13555 Bishops Court, Suite 230 Brookfield, Wisconsin 53005-6224 Phone: (262) 784-8966 Fax: (262) 784-8818 A-206 DOCUMENT 16 Trial Court Order Denying Motion In Limine A-207 STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY BRANCH 6 STATE OF WISCONSIN, Plaintiff, ¥. Case No.: 03-CV-6540 Unclassified - Civil: 30703 ) ) ) ) ) ) WISCONSIN CENTER ) DISTRICT; ) GRUNAU/HUNT, a Joint) Venture; GRUNAU ) PROJECT ) DEVELOPMENT, INC.; ) HUNT CONSTRUCTION _) GROUP, INC.; and ) HARENDA ) ENTERPRISES, INC., ) ) ) ) Defendants. ORDER The defendant Harenda Enterprises, Inc., filed a Motion In Limine to Exclude Evidence of the State’s Asbestos Test Results. A hearing was held on the motion on April 25, 2005. At that hearing, defendant Harenda appeared by Attorney Mark W. Rattan and the State of Wisconsin appeared by A-208 Assistant Attorney General Jeffrey M. Gabrysiak. For the reasons stated by the Court at the conclusion of the hearing, the Court HEREBY ORDERS as follows: 1. The defendant’s motion to exclude all test results based on the alleged failure to follow the “Interim Method” as it applies to layered samples is DENIED. Z. The defendant’s motion to exclude test results from the “1990 AHERA Report” or the “1990 Milwaukee Report” is GRANTED. Dated this 10 day of May, 2005. /s/ Kitty K. Brennan KITTY K. BRENNAN Milwaukee County Circuit Court Judge A-209 DOCUMENT 17 Findings Of Fact And Conclusions Of Law ‘A-210 STATE OF WISCONSIN CIRCUIT COURT MILWAUKEE COUNTY STATE OF WISCONSIN, ) ) Plaintiff, ) ) Vv. ) ) WISCONSIN CENTER ) Case No.: 03-CV-6540 DISTRICT; ) GRUNAU/HUNT, a Joint i+) Venture; GRUNAU ) PROJECT ) DEVELOPMENT, INC.; ) HUNT CONSTRUCTION _) GROUP, INC.; and ) ) ) ) ) ) HARENDA ENTERPRISES, INC., Defendants. FINDINGS OF FACT AND CONCLUSIONS OF LAW This cause coming to be heard on the motions for summary judgment of plaintiff, the State of Wisconsin, and defendant, Harenda Enterprises, Inc., and the Stipulation executed by counsel of the State of Wisconsin and Harenda Enterprises, Inc. on June 8, 2005 (“the Stipulation”), due notice having A-211 been given to all parties entitled thereto, the Court having been advised in the premises, and having held a hearing on June 8, 2005 attended by attorney Jeffry M. Gabrysiak for the State of Wisconsin and by attorney Mark W. Rattan for Harenda Enterprises, Inc., NOW, THEREFORE, based upon _ the Stipulation, the facts in the record, and the submissions by the parties, and all other matters in the record, the Court hereby makes the following Findings Of Face And Conclusions Of Law, grants the State of Wisconsin’s motion for summary judgment, and denies Harenda Enterprises, Inc.’s motion for summary judgment accordingly. FINDINGS OF FACT 1. Plaintiff, the State of Wisconsin (“the State”), is a body politic and government unit that is part of the United States having its seat of government and principal office located at the State Capitol in the State of Wisconsin, County of Dane, City of Madison. 2. Defendant, Harenda Enterprises, Inc. (‘HEI’) is a corporation organized and existing under the laws of the State of Wisconsin with its principal place of business located at 21675 Doral Road, Unit C, in the County of Waukesha, City of Waukesha, State of Wisconsin, 53186. 3. The Wisconsin Center District (““WCD”) is a government body created in 1994 to fund, build and operate the Midwest Airlines Center in A-212 downtown Milwaukee, and to own, operate and build other venues in the City of Milwaukee. 4. Prior to June 2001, the WCD decided to renovate a facility located at 500-510 West Kilbourn Avenue in the City of Milwaukee, State of Wisconsin, that was originally constructed in 1904 and was known as_ the Milwaukee Auditorium (“the Auditorium”). 5. In June, 2001 the WCD, in its capacity as the owner of the Auditorium, retained HEI to conduct an inspection of the Auditorium for possible asbestos-containing materials (ACM) prior to the anticipated renovation. 6. HEI undertook an inspection of the Auditorium in June 2001 and in January 2002 to determine whether the facility contained ACM, and if so, the amount of the ACM. 7. HEDs pre-demolition inspection identified the existence of ACM in 5,670 linear feet of pipe insulation, 64 square feet of tank insulation, 54 fire doors, a stage curtain, 19,262 square feet of mastic, 1,80€ square feet of stair tread, 27,802 square feet of ceiling tile, and 500 square feet of transite in various locations in the Auditorium. 8. HEI’s_ pre-demolition inspection in January 2002 included taking samples of material from walls of an area of the Auditorium identified as the second floor bowl area (hereinafter referred to as “the disputed area”). A-213 9. The laboratory test results of the wall samples HEI took in the disputed area indicated that none of the samples contained greater than 1% asbestos under the method that the _ testing laboratory used. 10. The State, through its contractual — representative on the _ site, the Milwaukee Department of Neighborhood Services (DNS), undertook testing for asbestos in the disputed area by taking three samples of material from walls in the disputed area of the Auditorium on March 21, 2002. 11. The laboratory test results from the State’s March 21, 2002 sampling event showed that one layer of one of the samples contained greater than 1% asbestos under the testing method the State used, and the remaining samples were “non-detect” for asbestos. The laboratory that tested the samples from the March 21, 2002 sampling event further determined the following: a. That the one layer of the sample that contained greater than 1% asbestos, designated Sample No. MaA-3II, contained 2% asbestos by “polarized light microscopy” (PLM) testing and 1.75% asbestos by point counting; b. That the sample contained a total of two layers of material; and Cc. That other layer, designated Sample No. MA-3, was non-detect for asbestos. A-214 12. Demolition activities of the disputed area were commenced in March 2002 by Walters Wrecking, the demolition contractor. Ordinarily, the Court would determine the exact date that demolition activities commenced and the exact date the demolition activities ceased in the disputed area, because, under the regulations discussed in the Conclusions Of Law section, infra, each day of demolition of ACM _ without the abatement regulations being followed is a separate violation of the regulations, and the number of days of violation is a factor for the Court to consider in determining the amount the defendant should pay under Wis. Stat. §285.87(1) for violations of NR 447. The parties have stipulated to the amount HEI should pay under Wis. Stat. §285.98(1), however, so findings by the Court concerning the number of days of the violation are not necessary to resolve the case. 13. The State, through the DNS, undertook additional testing for asbestos in the disputed area of the Auditorium on April 2, 2002 by collecting three more samples of material that had been demolished between the March 2002 date when demolition began and the April 2, 2002 date of the sampling event. 14. The laboratory test results from the State’s April 2, 2002 sampling event showed that the samples contained 2%, 1.25% and 2.5% asbestos, respectively, under the testing method that the laboratory used. A-215 15. The State undertook additional testing for asbestos in the disputed area of the Auditorium on April 4, 2002 by collecting ten samples of plaster material that had been demolished between the March 2002 date when demolition began and the April 4, 2002 date of the sampling event. HEI was provided a “split” of each of those ten samples so that HEI could have those sampies tested by its own independent laboratory. 16. The state’s laboratory test results from the State’s April 4, 2002 sampling event showed the following under the testing method the laboratory used. a. Field Sample Nos. 7 through 10 with corresponding Lab Nos. 965571-74 were all non-detect for asbestos. b. Field Sample Nos. 2 and 5 with corresponding Lab Nos. 954566 and 954569, respectively, each contained a layer of wall material containing greater than 1% asbestos, but the overall percent asbestos content for the entire sample when the numerical results of all layers were combined was 1% or less. c. Field Samples Nos. 3 and 6 with corresponding Lab Nos. 954567 and 954570, respectively, each contained a layer of wall material containing 1% asbestos, and the overall asbestos content for the entire sample when the A-216 2%. numerical results of all layers were combined was less than 1%. Field Sample No. 1 with corresponding Lab No. 951148 was a single layer “skim coat” sample that tested out as containing 2.2% asbestos. Field Sample No. 4 with corresponding Lab No. 954568 was a single layer “skim coat” sample that tested out as containing 5% asbestos. The testing results from the independent laboratory to which HEI sent the split samples from the April 4, 2002 testing event, Carolina Environmental, showed the following under the testing method that the laboratory used. a. Field Samples Nos. 7 through 9 with corresponding Lab Nos. A28102-04 were all non-detect for asbestos. Field Sample Nos. 1 and 4 with corresponding Lab Nos. A28096 and A28099, respectively, were single layer samples that tested out as containing 2% asbestos. Field Sample No. 2 with corresponding Lab Nos. A28097A and A28097B, Field Sample No. 3 with corresponding Lab. Nos. A28098A and A28098B, Field Sample No. 5 with corresponding Lab A-217 " = "ae > Zz p WAS + 46 * Md eace ec ZX IR AO OF Se MRS LEO ONO IS Pee = 1a Oo Be a cis i ag at ote Ne Tale ita i Soules ki aha i hs eae as Gs Bk Rete MMe MRE ION it ON LOE CRANES MEST OE gre MGT EE LP PE GSE NN NOS eeory : E : . eee AT Ee a SR I EE ST TE A oT En OEE ECE Ss Me eR Hee PRE er cats! if erica ich a ak oe ET aE Re Ee ene ae ET ENT eT Se OER Re ee Ee Sp ee PoE P Re See et aye eR ‘ a we de aS BV ae eg ASS ON eae enna ha AR OA Spe ATI Ven Ae Soe ABSA ge EE Or DS toa ORT Caine pot Ae ae SO ia 7 3 se . 2S ee La: Sa iad Nos. A28100A and A28100B, Field Sample No. 6 with corresponding Lab Nos. A28101A and A28101B, and Field Sample No. 10 with corresponding Lab Nos. A28105A and A28105B_ each contained a layer of wall material containing 2% asbestos, and a layer of wall material that was non-detect for asbestos. d. The laboratory did not mathematically combine the numerical results for each layer of the respective samples referenced in sub paragraph c. avove to obtain the overall asbestos content of each sample. 18. The Court finds that there is no dispute concerning the above recited facts, and that the Court can enter summary judgment as a matter of law. CONCLUSIONS OF LAW 19. Wis. Stat. §285.11 authorizes. the Wisconsin Department of Natural Resources (WDNR) to promulgate rules implementing clean air standards consistent with Ch. 285 generally and its federal counterpart, the Clean Air Act (CAA), 42 U.S.C. §7401 et. seq. 20. Per authority of Wis. Stat. §285, the WDNR promulgated rules concerning asbestos inspection, identification and abatement that are codified in the NR 447 series of regulations, A-218 Wisconsin Administrative Code, following observance of proper administrative rulemaking procedures under the Administrative Procedure And Review Act, Wis. Stat. §227.01 et. seq. 21. #The asbestos regulations contained in NR 447 are patterned after the federal National Emission Standards For Hazardous Air Pollutants (NESHAP), 40 CFR §61.140 et. seg. The NESHAP regulations for asbestos were enacted pursuant to §112 of the federal Clear Air Act (CAA), 42 U.S.C. §7412, following the observance of proper administrative rulemaking procedures under the federal Administrative Procedure Act, 5 U.S.C. §553. 22. #The NR 447 regulations apply to “all air contaminant sources which may emit asbestos, to their owners and operators and to any person whose action causes the emission of asbestos to ambient air.” (NR 447.01) 23. An owner or operator is defined as “any person who owns, leases, operates, controls or supervises the facility being demolished or renovated or any person who owns, leases, operates, controls or supervises the demolition or renovation operation, or both.” (NR 447.02(30)). 24. Prior to the renovation or demolition of a facility such as the Auditorium, an owner or operator of the facility is required to undertake an inspection of the facility for the presence of asbestos- containing materials (ACM). (NR 447.06(1)) A-219 t, on # a Bi 25. The material is considered ACM if it contains “more than 1 percent asbestos as determined using the methods specified in appendix E, subpart E, 40 CFR part 763, section 1, Polarized Light Microscopy that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure.” (NR 447.02(1)(a) and NR 447.02(1)(b)). The methods specified in appendix E, subpart E, 40 CFR part 763, section 1, Polarized Light Microscopy, adopted by reference in NR 447.02(1)(a) and NR 447.02(1)(b), will hereinafter be referred to as the “Interim Method.” 26. The State contends that two documents published by the federal Environmental Protection Agency (EPA) are to be used to interpret and apply NR 447, the NESHAP, and the Interim Method. The first document is titled “Asbestos NESHAP Clarification Regarding Analysis Of Multi-Layered Systems,” and is published in the Federal Register, Vol. 59, No. 38, January 5, 1994. The second document is titled “Asbestos NESHAP Clarification Regarding Analysis Of Multi-Layered Systems,” and is published in the Federal Register, Vol. 60, pp. 65243-44, December 19, 1995. These documents will } reinafter be referred to as “the Clarifications.” For the reasons indicated in HEI’s motions, supporting materials, and arguments that HEI made and that are in the court record, HEI contends that the Clarifications are not part of the Interim Method, cannot be used to interpret and apply NR 447, the NESHAP, or the Interim Method, and that test results undertaken in accordance with the Clarifications cannot be used to establish that the Auditorium contained ACM. It is undisputed that A-220 neither the EPA nor the WDNR observed administrative rulemaking procedures under 5 U.S.C. §553 et. seq. or Wis. Stat. §227.01 et. seg. necessary. to enact the Clarifications into an administrative rule. 27. For the reasons stated on the record at the hearings on November 1, 2004 and April 25, 2005, the Court finds that the results of tests undertaken in accordance with the Clarifications can be used to establish that the Auditorium contained ACM. 28. The requirements of NR 447.07 and 447.08 apply to each owner or operator of a renovation activity if the combined amount of asbestos containing material to be _ stripped, removed, dislodged, cut, drilled or similarly disturbed contains at least 260 linear feet on pipes or at least 160 square feet on other facility components (hereinafter referred to as a “jurisdictional amount” of asbestos). 29. The State contends that HEI violated the following provisions of NR 447: a. Failure to adequately wet the ACM in the disputed area in violation of NR 447.08(6)(a); ‘b. Failure to carefully lower ACM in the disputed area in violation of NR 447.08(6)(b); A-221 30. four-pronged burden of proof in order to establish that HEI violated the asbestos NESHAP and NR Failure to remove the ACM from the disputed area prior to the demolition activity in viclation of NR 447.08(1); Discharge of visible emissions to the outside air during the disturbance of ACM in violation of NR 447.13(1); Failure of the notice of intent to renovate a facility containing ACM to accurately describe the ACM in the disputed area in violation of NR 447.07(4)(k). The State must satisfy the following 447: a. HEI was the operator within the meaning of NR 447.02(30); b. A renovation occurred; Cc. A jurisdictional amount of ACM was disturbed, i.e., at least 160 square feet of ACM; and d. ACM was stripped or removed without compliance with the above stated requirements of NR 447. See United 126 F.Supp.2d 521 (N.D. Ill. 2000). 31. The Court finds that the State has satisfied the first prong of its burden of proof, A-222 because the parties have stipulated that HEI was an “operator” within the meaning of NR 447.02(30). 32. The Court finds that the State has satisfied the second prong of its burden of proof, because there is no dispute that a renovation occurred in the disputed area of the Auditorium. 33. The Court finds and concludes that the State has satisfied the third prong of its burden of proof in that disputed area contained at least 160 square feet of ACM, i.e., the disputed area contained more than 160 square feet of material containing “more than 1 percent asbestos as determined using the methods specified in appendix E, subpart E, 40 CFR part 763, section 1, Polarized Light Microscopy that, when dry, cannot be crumbled, pulverized, or reduced to powder by hand pressure” within the meaning of the Interim Method and _ the Clarifications. (NR 447.02(1)(a) and NR 447.02(1)(b)). The Court thus finds that a jurisdicticnal amount of ACM was disturbed. 34. The Court finds that the State has satisfied the fourth prong of its burden of proof, because the ACM in the disputed area was not adequately wetted under 447.08(6)(a), was not carefully lowered under 447.08(6)(b), was not removed from the disputed area prior to demolition under 447.08(6)(a), was discharged to the outside air under NR 447.13(1), and the notice of intent to renovate a facility containing ACM did _ not accurately describe the ACM in the disputed area under NR 447.07(4)(k). A-223 35. The Court finds and concludes that holaing HEI liable under the facts and circumstances of this case does not violate HEI’s substantive due process rights vader the U.S. Constitution or the Wisconsin Constitution. The Court further rejects HEI’s argument that the Interim Method is_ constitutionally void for vagueness. 36. Based upon the above findings of fact and conclusions of law, the Court will enter summary judgment in favor of the State and against HEI on HEI’s liability for the above articulated violations. 37. The Court need not make findings or conclusinns concerning the amount of money HEI should pay pursuant to HEI’s liability under Wis. Stat. §285.87(1), because. the State and HEI stipulated to the following payments to be made by HEI to the Clerk of the Circuit Court, and the Court will enter judgment accordingly: Principal Amount under’ Wis. Stat. §285.87(1): $25,00000 Assessment under Wis. Stat. §757.05: 6,000.00 Environmental Assessment under Wis. Stat. §299.93: 2,500.00 Costs under Wis. Stat. 814.63(1)(b): 25.00 Crime Lab and Drug Assessment: 7.00 Court Services Fee under Wis. Stat. 814.634(a)(a): 68.00 Jail Assessment under Wis. Stat. §814.62(3)(ag) 250.00 A-224 Justice information fee under Wis. Stat. §814.75(15) 9.00 Prosecution Clerks Surcharge under Wis. Stat. §814.75(22) 3.50 Costs under Wis. Stat §814.01: __ 3,274.00 Total: $37,138.50 38. The State and HEI have stipulated to a stay of execution of judgment until 30 days after a final order affirming the trial court judgment following exhaustion of all timely appeals to the Wisconsin Court of Appeals, the Wisconsin Supreme Court, and the U.S. Supreme Court, so the Court will issue a stay of execution accordingly. 39. The parties have stipulated that the interest on the $37,138.50 amount of the judgment under Wis. Stat. §815.05(8) shall start to run from the date of a determination in the Wisconsin Supreme Court either denying review or affirming the trial court judgment, so the judgm a a * with this difficult problem. The enclosed manuals are a major part of this program and are being mailed to all public school districts. They were prepared to inform you of the health hazards associated with asbestos and outline the steps you and the schools in your district can take to identify ashestos-containing materials and _ to _ protect students and school personnel from exposure. Also participating in this EPA program are the Department of Health, Education, and Welfare, and the Occupational Safety and Health Administration, and the Consumer Product Safety Commission. Through the Regional Offices located in major cities across the country, EPA and these Agencies will provide assistance for the difficulties that you may encounter in undertaking a control program in your schools. We are operating several toll-free numbers that you can call to ask for information and assistance. A videotape that was prepared to supplement this manual will also be available for your use. A survey form is included in this manual. The form asks questions on the results of the control programs you conduct in your schools. Your participation in this part of the EPA program would be appreciated. By completing the form you will assist us in assessing the extent of the asbestos-containing material problem in the United States. I encourage you and your staff to review the enclosed manuals and inform the schools in your district of the EPA program. A successful nationwide school asbestos program depends on your efforts and those A-279 MR Sas bo” PEE A ee ee a SOR S I RENO eT mn KOR mPa er” ik eet PNET Te Ly Mie ee ee oP ee ee of school officials across the country. We look q forward to working with you in the important weeks a and months ahead. Sincerely, 4 /s/ Steven D. Jellinek 4 Assistant Administrator for Toxic Substances A-280 a Table of Contents Acknowledgements Preface Chapter 1: Introduction: The Concern 1 Chapter 2: Asbestos and Its Uses 2 Chapter 3: How to Conduct an Asbestos Control Program 5 Chapter 4: Inspecting for Friable Material 7 Chapter 5: Sampling Friable Material 9 Chapter 6: Analysis of Bulk Samples 11 Chapter 7: Exposure Assessment 13 Chapter 8: Corrective Action 15 Chapter 9: Specificiations and Requirements for Contractors 20 Chapter 10: EPA School Survey 26 Chapter 11: Assistance from Federal and State Agencies 33 Appendix A: U.S. Environmental Protection Agency Regulations for Asbestos 35 A-281 Appendix B: Appendix C: Appendix D: Appendix E: Appendix F: Appendix G: Appendix H: U.S. Environmental Protection Agency Regional National Emission Standards for Hazardous Air Pollutants (NESHAPS) Coordinators | 44 U.S. Department of Labor-Occupational Safety and Health Administration (OSHA) Asbestos Regulations 45 State Occupational Safety and Health Program Offices and U.S. Department of Labor-Occupational Safety and Health Administration (OSHA) Field Locations 50 U.S. Department of Health, Education, and Welfare--National Institute of Occupaticnal Safety and Health (NIOSH) Regional Offices 57 U.S. Department of Health, Education, and Welfare Regional Health Administrators 58 Toll-Free Information Numbers 58 “Mineral Characterization of Asbestos- Containing Spray Finishes” 59 A-282 Chapter 5: Sampling Friable Material The sampling and analysis of friable material are extremely important. The decision to take corrective action will depend, in large part, on the results of the laboratory analysis. It is critical, therefore, that sampling in schools is carried out properly and that laboratory analyses are performed accurately. The sampling procedures outlined in this chapter should be followed closely. Improper sampling will result in unreliable analyses and lead to either unnecessary corrective action or to no action for potentially hazardous material. The choice of the analytical technique and an analytical laboratory are also important. Chapter 6 contains information on analytical techniques and laboratory selection. Is sampling and analysis of friable material necessary? Friable material should always be sampled and analyzed for asbestos. Neither visual inspection nor checking building records establish the presence of asbestos in friable material. Suspect material could contain glass fibers, cellulose, or other non-asbestos mineral fibers. How to take a sample If friable material is found, a representative sample should be taken from within the material itself by penetrating the depth of the material with a sample container. It is important to penetrate the material because it may have been applied in more than one A-283 layer or covered with paint or a protective coating. This kind of sample is called a bulk sample. One sample should be taken for approximately every 5,000 square feet of material having the same color and texture (1.e., it is homogeneous in appearance). Material of a different appearance should be sampled separately. Small classrooms, offices, or closets with less than 5,000 square feet of friable material should also be sampled separately if different material is found. Sampling is not difficult and can be performed by school personnel if these procedures are followed: (1) Use a small container such as a plastic 35mm film canister or a small, wide-mouthed glass jar with a screw-on lid. The container should be dry and clean. (2) Gently twist the open end of the container into the material. A core of the material should fall into the container. A sample can also be taken by using a knife to cut out or scrape off a small piece of material and then placing it into the container. Be sure to penetrate any paint or protective coating and all the layers of the material. If the sample container cannot penetrate the material, consider whether the material is really friable or not. (3) Tightly close the sample container; wipe the exterior of the container with a damp cloth to remove any material which may have adhered to it during sampling. A-284 baa ~— SARS Aes PLS ORG AEE . ee ate ged age ae ee F Pg Sa Ae NS i oe Ot Une eke ee ~_— Y eee roads 5 ‘ : et HONEA © pee. : acon .. ae “ « (4) Tape the container lid to prevent the accidental opening of the container during shipment or handling. (5) Label the sample container. This label should identify the school and date the sample was taken, and bear a unique identification (ID) 4 numbex. g (6) Make a record of each sample by noting the date a the sample was taken, location of material 4 sampled, the area or room sampled, and the a sample ID number. (7) Send the sample to an analytical laboratory for analysis (See Chapter 6). What precautions should be taken during sampling? To avoid causing unnecessary exposure to asbestos fibers, the following precautions should be taken during sampling. e The material should be sampled with the area a is not in use. e Only those persons needed for the sampling should be present. e The sample container should be held away from the face during actual sampling. e Do not disturb the material any more than necessary. e The material can be sprayed with a light mist of water to prevent fiber release during sampling. e If a large number of samples are taken, 3 NIOSH recommends that the sampler wear an 5 approved respirator. Contact the NIOSH A-285 Regional Offices listed in Appendix E for information on approved respirators. e If pieces of material break off during sampling, wet mop floors and areas where they have fallen. Should the air be sampled? Air sampling is the counting of fibers suspended in the air. A known volume of air is pumped through a filter where all suspended particles are collected. A standardized air sampling method with specific equipment and particle counting techniques is used by the Occupational Safety and Health Administration (OSHA) and industrial hygienists for evaluation of airborne asbestos contamination. Unfortunately air sampling by this standard method cannot show whether the friable material actually contains asbestos fibers. The method counts any particle of a certain size and fibrous shape. The fibers that are counted may or may not be asbestos. Bulk sampling and analysis of the friable material itself is the only method to determine whether or not asbestos is present in the material. A-286 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0671%3A1. Public record. Not legal advice.