The EPA's Prosecution of Clean Air Act Asbestos NESHAP Cases Based Upon Nonbinding Bulk Material Test Methods

For the last fourteen years, the Environmental Protection Agency (EPA) and many states have structured their civil and criminal Clean Air Act (CAA) asbestos enforcement programs upon a bulk material test method that has never been promulgated into law through administrative rulemaking. In so doing, the federal and state governments disregard the only bulk material test method for asbestos content enumerated by law for CAA compliance. The particular test method used in an enforcement proceeding is highly consequential: it effectively defines the universe of material that is subject to regulation under the asbestos National Emission Standards for Hazardous Air Pollutants (asbestos NESHAP).