Municipal Water Systems

and AC Pipe

Kevin R. Murray, Partner

Holland & Hart LLP

Important Information

This presentation is similar to any other seminar designed toprovide general information on pertinent legal topics. Thestatements made and any materials distributed as part of thispresentation are provided for educational purposes only. They donot constitute legal advice nor do they necessarily reflect theviews of Holland & Hart LLP or any of its attorneys other than thespeakers. This presentation is not intended to create an attorney-client relationship between you and Holland & Hart LLP. If youhave specific questions as to the application of the law to youractivities, you should seek the advice of your legal counsel.

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Emergencies

Emergencies

Asbestos Cement Pipe

Asbestos Cement (AC) pipe was used widely in

the mid 1900s in potable water distribution

systems. Since the lifetime of this product is

approximately 70 years, updating this

infrastructure may involve removal of the pipe.

The cement acts as a binder that holds the

asbestos fibers within a solid matrix.

This usually prevents asbestos fibers from being released easily, unless

mismanaged, damaged, or in badly weathered conditions, in which case

removal or replacement may be a regulated activity.

Regulatory Regime

• The Utah Department of Environmental Quality (UDEQ), Division of Air

Quality (UDAQ), regulates the removal, handling, and disposal of asbestos-

containing materials during construction, remodeling, and demolition

• Asbestos is subject to regulation under:

– Utah Air Conservation Act

– Federal Clean Air Act

• As outlined by rule:

– Utah Administrative Code R307-801 (Utah Air Quality Rules)

– National Emission Standards for Hazardous Air Pollutants (NESHAP)

• February 2014 Guidance: How to Handle Non-friable Asbestos Cement

Pipe

• UDEQ also relying on two EPA applicability determinations

Activities Subject to Regulation

• UDAQ and EPA consider work performed on AC

pipe to be “renovation” under UAC and NESHAP

• AC pipe is classified

as Category II Non-

Friable Asbestos

Containing Material

Activities Subject to Regulation

• The removal of non-friable asbestos containing material (ACM) in good condition is exempt from most rules, but subject to disposal restrictions

• You do not need to be a licensed asbestos contractor or a DEQcertified asbestos worker to conduct non-friable asbestos removal– The key then is friable vs. non-

friable

Regulating Thresholds

• If during the demolition or renovation activity AC

pipe becomes crumbled, pulverized, or reduced

to powder, it is then potentially subject to the

substantive NESHAP and state regulations

• NESHAP regulations only apply if the combined

amount of RACM is at least 260 linear feet of

pipes

• However, State regulations apply more broadly, defining a project as

small, short-scale duration(SSSD) as one that removes or disturbs less

than three square or linear feet of RACM

Rendering AC Pipe Friable

• In settlement conferences, UDEQ had

expressed the position that using a

mechanical method that produces a

jagged edge converts AC pipe to

regulated asbestos-containing material

(RACM)

• Once RACM, various obligations are

triggered

• Negotiation ensued to create more

definitive guidance on methods designed

not to render the material friable

• The new rule

Removal and Maintenance of Non-friable AC

Pipe

• Removal and maintenance activities involving AC pipe in good condition and in whole sections are not regulated by DAQ Administrative Rules or Federal Regulations

• Specifically, as long as the AC pipe is not crumbled, pulverized, or reduced to powder and does not have a high probability of becoming crumbled, pulverized, or reduced to powder, you do not need to be a DAQcertified asbestos company or use DAQ certified asbestos workers to perform AC pipe removal or maintenance activities

• If you perform removal or maintenance activities on AC pipe following the hand methods in the new guide, the ACM does not have a high probability of becoming crumbled, pulverized, or reduced to powder and therefore the work would not be subject to Utah Asbestos Administrative rules or Federal Asbestos Regulations

• When counting linear feet of RACM at a project site for the purposes of determining the three linear foot threshold, only count material crumbled, pulverized, reduced to powder, or otherwise reduced to a friable state

• For disposal, one cannot separate friable from non-friable asbestos-containing material, so the entire length of AC pipe must be disposed of as friable

Removal and Maintenance of Non-friable AC

Pipe

• If more than three linear feet of AC pipe become

friable during removal or maintenance activities,

stop work immediately and promptly contact a DAQ

certified asbestos company that employs Utah

certified asbestos supervisors and workers

Removal and Maintenance of Non-friable AC

Pipe

Options for Managing, Maintaining, and

Removing Non-friable AC Pipe

• DAQ recommends that facilities with AC pipe use the following methods to manage, maintain, or remove AC pipe:

– Snap cutters

– Carbide-tipped blade cutters

– Manual field lathes

– Wet tapping AC pressure pipe

– Dry tapping AC pressure pipe

– Manual rasp

– Chisel and rasp

– Hammer and chisel

Snap Cutting

Wet Saw

• AC pipe must be removed, handled, and disposed of in a manner that keeps the material in whole pieces to be considered non-friable.

• Sanding, sawing, grinding, or chipping with hand methods will make AC pipe friable and must be minimized

• Power tools make AC pipe friable, can generate large mounts of dust, and must be avoided

• The AC pipe must be kept wet during removal

Options for Managing, Maintaining, and

Removing Non-friable AC Pipe

Notification

• If the amount of RACM that would be disturbed by renovation activities is greater than the SSSD amount but less than the NESHAP threshold, the operator must submit an asbestos notification ten working days before the start of the demolition project and a “less than NESHAP” notification form at least one day before commencing removal

• If the amount of RACM in the regulated facility is greater than or equal to the NESHAP amount, the operator shall submit an asbestos abatement project notification form ten working days before the removal begins

Notification cont…

• The notification forms must follow the various

requirements of the UAC

• If the project is an emergency renovation,

notification must be submitted as soon as possible

before, and no later than, the next business day

after asbestos removal begins

Training Requirements

• If handling three feet or less of friable AC pipe, DAQ requires no

training or work practices

• DAQ expects that most maintenance or emergency work will not

be regulated

• DAQ strongly recommends, based on the Asbestos Hazard

Emergency Response Act (AHERA) 40 CFR Part 763.92, that all

workers receive two hours of asbestos awareness training and that

workers handling up to three linear feet of friable AC pipe have an

additional 14 hours asbestos training

Disposal

• Containerized

RACM must be

disposed of in a

landfill licensed to

receive RACM

• AC pipe, if not

rendered friable,

can be buried in

place

Leaving AC Pipe in Place

• The crushing or bursting of AC pipe causes the material to become RACM and subject to Federal Asbestos Regulations and Utah State Administrative Rules

• The backfilling and burial of crushed or burst AC pipe would also potentially be subject to both federal and state civil and criminal penalties

• Alternative methods for leaving AC pipe in place when no longer in service include abandoning and burying empty pipe or pumping grout into the pipe before burying

Penalties

• No further action, warning letter, early administrative settlement with penalty

• Civil penalty of up to $10,000 per day for each violation

• Enforcement options

*Note this is UDEQ only, not UOSH