Sunday, November 05, 2006
On September 15, 2006 Mr. John Toner, former Health and Safety Officer for Comprehensive Employee Management (CEM), was sentenced to seven (7) months in prison and fined $1,000 for a misdeameanor violation of the Clean Air Act, 42 U.S.C. Section 7413 (c) (4), the negligent release of asbestos into the ambient air. Mr. Toner admitted he aided and abetted the negligent and unlawful release of asbestos into the ambient air, and in doing so did negligently place other persons in imminent danger of death or serious bodily injury. Mr. Toner in his capacity as a third party health and safety officer employed by CEM, Inc. did fail to stop those practices. To give you some background, these charges stem from the illegal removal of 25,000 linear feet of asbestos during a three day period in May 1999 at a former Westinghouse facility located at 4454 Genesee Street, Cheektowaga, New York. This is the case we've talked about in previous air sample technician and project monitor refresher classes regarding the potential for criminal charges (criminal liability) for ignoring unlawful removal of asbestos containing materials by a contractor. In addition, based on our discussions and the limited amount of aggressive air sampling that was being done by air sampling technicians or project monitors the arguement could be made that project monitors/air monitoring technicians were actually aiding and abetting the unlawful removals. This case emphasizes that Air Sample Technicians and Project Monitors, as individuals, can be held criminally liable for not ensuring that the contractor complies with the asbestos regulations. Many individuals in the industry always assumed that we could be assessed civil penalties but individual criminal charges were not typically on our list of worries. That has now changed, a project monitor that ignores the regulations and their duty under the regulations can be held criminally liable, which means jail time based on their level of negligence. Remember these were only federal charges under the Clean Air Act. This doesn't include any violations under the old New York State Regulations. In addition, realize the new New York State Regulation includes alot of requirements for the project monitor, including performing visual inspections according to the ASTM standard and signing off that the cope of work on a project was completed. These requirements puts project monitors in the middle of making sure the regulations are complied with and hence if they do not meet these requirements sets them up for violations. So there is more reason to make sure you comply. Good Night and Good Luck!