| (A
version of this article will appear 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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©2002 Thelen Reid Brown Raysman & Steiner LLP
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