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Supervisor Is Convicted of Non-Compliance with Asbestos Work Practice Standards


September 2, 2002


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(A version of this article appears in the California Construction Law Reporter, published by the West Group.)


By James E. Acret

Pearson was a supervisor for a demolition and asbestos abatement subcontractor on a project to upgrade and renovate the central heating plant at the Whidbey Island Naval Air Station. He was charged with two counts of knowingly causing the removal of asbestos-containing materials without complying with applicable work practice standards in violation of 42 USC §§7412 (f) (4), 7412 (h) and (h), and 7413 (c) (1).

A containment structure of plastic sheeting was placed around the area designed for asbestos removal. Negative air machines were employed. Work practice rules, 40 CFR §61.141, require that asbestos be wetted before removal. Testimony showed that the asbestos was too dry, that containment walls were pulled away from the ceiling, that some negative air machines were clogged and that bags of asbestos were found outside the containment area with asbestos material on their exterior surfaces. Pearson's defense was that he was not involved. He was convicted and sentenced to 10 months in prison.

The Court of Appeal affirmed. United States of America v. Pearson, ___ F.3d ___, 2001 DJDAR 13029 (9th Cir. 2001). An owner, operator or supervisor of a demolition or renovation activity may be criminally liable for failure to employ proper work practice standards. The jury was properly instructed that a "supervisor" must have significant and substantial control over the actual asbestos abatement work practices. This instruction was proper. It is not necessary for the defendant to possess ultimate control.


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