Court Resolves Asbestos Testing Standard Controversy

January 1, 2007

A recent decision by the court of appeals clarifies a building material asbestos testing standard applicable to demolition and remodeling projects. In State of Wisconsin v. Harenda Enterprises, Inc., the court held that an EPA “clarification” of the standard could not be interpreted and enforced by the DNR as though the “clarification” were the rule.

State and Federal regulations require that precautions be taken to prevent and mitigate the release of asbestos if asbestos-containing material (ACM) will be disturbed by demolition or remodeling. At issue in Harenda, was the DNR’s application of the testing standard used to determine whether building materials meet the regulatory definition of ACM.

The regulation as stated in the Wisconsin Administrative Code provides that levels of asbestos found in each discrete stratum in a non-homogenous building material sample are combined to yield an estimate of asbestos content for the entire sample. If the average across all strata is greater than 1 percent the material is classified as ACM.

The DNR argued that the EPA clarifications, never formally adopted as law by Federal or State government, should be considered in interpreting the testing standard. In essence, the clarifications would classify material as ACM if the level of asbestos found in any strata contains more than 1 percent asbestos.

The DNR applied the standard set out in the Wis. Admin. Code together with the clarification so that more building materials would be classified as ACM than would be under the rule stated in the Code if applied alone.

The court disagreed. It held that while administrative agencies are entitled to deference in interpreting their own regulations, no deference is owed when the interpretation is inconsistent with the plain language of the regulation. The court found that the testing standard included in the Wis. Admin. Code provided a clear command; therefore any interpretation at odds with that clear language is owed no deference even if interpretation is provided by the administrative agency which created the rule in the first instance.

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