Could Maryland's health department require asbestos removal contractors to meet an indoor air cleanliness standard in 1983?

Plain-English summary

Governor Harry Hughes asked whether the Department of Health and Mental Hygiene had authority to adopt a regulation requiring asbestos removal contractors to clean a project site until residue was no longer visible and airborne asbestos fiber concentration fell below a specific numerical threshold. A legislative oversight committee, the Joint Committee on Administrative, Executive, and Legislative Review, had questioned the Department's authority because the underlying State Air Quality Act's rulemaking power was tied to outdoor air pollution, while the challenged standard appeared to measure air quality inside an enclosed work site. The opinion concluded that the Department acted within its authority for two independent reasons: first, because the indoor cleanliness measurement was reasonably related to preventing the escape of asbestos into the outdoor atmosphere, satisfying the State Air Quality Act; and second, because the Department separately had authority under Maryland's asbestos removal licensing subtitle, which required licensed asbestos removal businesses to meet operational standards the Department was authorized to set. The opinion incorporated and concurred with an earlier letter from the Department's own counsel reaching the same conclusion, which is reproduced as an appendix to the opinion.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could Maryland's health department regulate indoor air quality at an asbestos removal site in 1983?
Yes, according to this opinion. Even though the State Air Quality Act's rulemaking authority was tied to outdoor air pollution, the opinion concluded that a cleanup standard measured indoors was reasonably related to preventing asbestos from later escaping into the outdoor atmosphere, so it fell within the Department's authority.

Did the Department need to rely only on air quality law to justify the standard?
No. The opinion identified a second, independent source of authority: Maryland's asbestos removal licensing subtitle, which required licensed businesses to meet operational standards the Department was authorized to establish, separate from its outdoor air pollution rulemaking power.

What was the actual cleanliness standard being reviewed?
The regulation at issue, COMAR 10.18.15.03B(1)(d)(ii), required a removal site to be cleaned until no residue was visible and the airborne concentration of asbestos fibers longer than 5 microns fell below 0.1 fibers per cubic centimeter, measured as an 8-hour time-weighted average.

Background and statutory framework

The Joint Committee on Administrative, Executive, and Legislative Review had questioned whether the Department exceeded its statutory authority when it adopted the numerical asbestos cleanliness standard, because the Health-Environmental Article's definition of "air pollution" was limited to substances in the outdoor atmosphere, while the challenged standard appeared to control indoor conditions inside an enclosed work site. The Department's own counsel had already addressed the Committee's concern in a March 9, 1983 letter, concluding that the standard was reasonably related to preventing outdoor air pollution because it was one step in an overall scheme, sealing the work area, containing and properly disposing of removed asbestos, and thoroughly cleaning the enclosure before dismantling it, all aimed at preventing asbestos from escaping into the outdoor atmosphere. The opinion adopted that reasoning and added a second, independent basis: Maryland's asbestos removal licensing subtitle separately required licensed business entities to meet Department-set operational standards as a condition of maintaining their license, including clean-up procedures, giving the Department authority over the cleanliness standard regardless of the air pollution question.

Citations

Statutes:

• §6-402 of the Health-Environmental Article of the Maryland Code (legislative findings on the hazards of asbestos exposure)
• §6-406(1) of the Health-Environmental Article of the Maryland Code (Department's duty to adopt rules and regulations to carry out the asbestos removal subtitle)
• §6-409 of the Health-Environmental Article of the Maryland Code (licensing requirement for asbestos removal businesses)
• §6-410(d) of the Health-Environmental Article of the Maryland Code (Department authority to set additional licensing standards)
• §6-411(b)(8) of the Health-Environmental Article of the Maryland Code (license application must describe final clean-up procedures)
• §6-414(c)(4) of the Health-Environmental Article of the Maryland Code (recordkeeping requirement for compliance procedures)
• §6-415(2) of the Health-Environmental Article of the Maryland Code (Department authority to reprimand, suspend, or revoke a license for failing to meet standards)
• §2-101 of the Health-Environmental Article of the Maryland Code (State Air Quality Act)
• §2-101(b) of the Health-Environmental Article of the Maryland Code (definition of "air pollution" limited to the outdoor atmosphere)
• §2-301(a)(1) of the Health-Environmental Article of the Maryland Code (Department's broad rulemaking authority for control of air pollution)
• COMAR 10.18.15.03B(1)(d)(ii) (the specific asbestos project cleanliness measurement standard reviewed in this opinion)
• COMAR 10.18.15 (Toxic Air Pollutant chapter of the State Air Pollution Control Regulations containing the asbestos control regulation)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ADMINISTRATIVE LAW

Rulemaking-Environmental Health-Asbestos-Air Quality Control-Asbestos Removal-Department Authorized To Adopt Asbestos Project Cleanliness Measurement.

May 2, 1983

The Honorable Harry Hughes
Governor

You have requested our opinion on whether the Department of Health and Mental Hygiene acted within its statutory authority when it adopted a regulation, codified at COMAR 10.18.15.03B(1)(d)(ii), that requires persons engaged in certain asbestos removal projects to clean the project site "until no residue is visible and the airborne concentration of asbestos fibers longer than 5 microns is less than 0.1 fibers per cubic centimeter (8-hour time-weighted average)". The Department's authority to adopt a requirement concerning asbestos residue in indoor air has been questioned by the Joint Committee on Administrative, Executive, and Legislative Review.

In a letter dated March 9, 1983, to the Honorable John S. Arnick, Chairman of that Committee, Chief General Counsel Dennis M. Sweeney and Assistant Attorney General Ann Marie DeBiase concluded that the adoption of such a requirement was within the Department's authority under §2-301(a)(1) of the Health-Environmental Article of the Maryland Code, which empowers the Department to "adopt rules and regulations for the control of [outdoor] air pollution". We concur in the conclusion stated in that letter, a copy of which is appended to this Opinion. In our view, a requirement that the cleaning of an asbestos removal project be measured by a numerical concentration ratio is reasonably related to the prevention of outdoor air pollution, for the reasons stated in the letter.

Moreover, we think that the Department acted within authority granted to it by Subtitle 4 of Title 6 of the Health-Environmental Article. That subtitle governs the licensing of business entities that engage in asbestos removal. In adopting this statute, the General Assembly made the following findings:

"(1) That exposure to asbestos, a known carcinogenic agent, creates a significant hazard to the health of the people of this State;
(2) That projects to remove asbestos expose increasing numbers of asbestos removers to this hazard; and
(3) That it is in the public interest to protect asbestos removers from this hazard by requiring adherence to strict safety standards on asbestos removal projects." §6-402 of the Health-Environmental Article.

In order to prevent this serious harm to the public health generally and to asbestos workers in particular, the statute requires business entities that intend to engage in asbestos removal to be licensed by the Department. §6-409. To qualify for a license, a business entity must meet not only several specific conditions set out in the subtitle, but also "any other standards that the Department sets". §6-410(d). On its license application form, the business entity must include, among other items, "[a] description of the final clean up procedures that the business entity will use". §6-411(b)(8). A licensee must keep records of each of its asbestos removal projects, including "[a] summary of the procedures that were used to comply with all applicable standards". §6-414(c)(4). Finally, the Department has a duty to "adopt the rules and regulations necessary to carry out the provisions of this subtitle". §6-406(1).

In short, the statute plainly contemplates that a business entity must not only meet the Department's qualification standards in order to initially qualify for an asbestos removal license, but must also actually conduct its removal operations in compliance with the Department's operational standards. Indeed, the Department may reprimand a licensee, or suspend or revoke a license, if the licensee "[f]ails at any time to meet: (i) [t]he qualifications for a license; or (ii) [a]ny rule or regulation that the Department adopts under this subtitle". §6-415(2).

In our view, a requirement of the nature contained in COMAR 10.18.15.03B(1)(d)(ii) is well within the authority granted by the asbestos subtitle. An improperly cleaned project site poses precisely the risk to public health that the subtitle's licensing process is intended to prevent. Therefore, when the Department requires a measurement procedure for determining whether a site has in fact been properly cleaned, it is carrying out its statutory duty under the asbestos removal subtitle. In this regard, we note that the Department cited the authority of this subtitle both when it proposed and, later, when it adopted the regulation in question. 9 Md. Reg. 1731 (August 20, 1982); 10 Md. Reg. 30 (January 7, 1983).

For all of these reasons, it is our opinion that the Department of Health and Mental Hygiene has ample statutory authority to adopt an asbestos project cleanliness measurement such as that contained in COMAR 10.18.15.03B(1)(d)(ii).

Stephen H. Sachs, Attorney General

Jack Schwartz, Assistant Counsel
Opinions and Advice

Avery Aisenstark
Chief Counsel
Opinions and Advice

APPENDIX

March 9, 1983

The Honorable John S. Arnick
Chairman, AELR Committee
Lowe Building
Annapolis, Maryland

Dear Chairman Arnick:

At a working session of the AELR Committee on March 7, 1983, your Committee questioned the authority of the Department of Health and Mental Hygiene to promulgate a particular work practice standard for the control of asbestos. The regulation at issue is COMAR 10.18.15.03B(1)(d)(ii), which requires that a person engaged in certain asbestos projects, i.e., those in which more than 260 feet of pipe covered or coated with asbestos materials are stripped or removed or in which 160 square feet of asbestos materials are used to cover or coat any duct, boiler, tank, reactor, turbine, or structural member, comply with the following:

"After removing any asbestos materials, clean all surfaces in the work area using the water and surfactant solution prescribed in §B(1)(b). When the surface has dried, vacuum any remaining dry residue on all surfaces using a vacuum equipped with a high efficiency particulate air (HEPA) filter. Repeat the sequence of wet mopping and vacuuming in 24-hour intervals until no residue is visible and the airborne concentration of asbestos fibers longer than 5 microns is less than 0.1 fibers per cubic centimeters (8-hour time-weighted average)." (Emphasis added.)

At your request, we were present to respond to your questions. This letter will confirm, in writing, the views expressed before your Committee.

The specific provision being questioned is part of a lengthy regulation entitled "Control of Asbestos" (COMAR 10.18.15.03). This regulation appears in COMAR 10.18.15, which is the Toxic Air Pollutant chapter of the State Air Pollution Control Regulations and was promulgated primarily under the authority of the State Air Quality Act (Health Environmental Article, §2-101 et seq.). Section 2-301(a)(1) of that Act provides a broad grant of rulemaking authority to the Department to " . . . adopt rules and regulations for the control of air pollution in this State. ..." The definition of "air pollution" at HE §2-101(b) is limited to substances present in the outdoor atmosphere. It was this reference to outdoor air which gave rise to the Committee's concern that the Department was exceeding its statutory authority when it promulgated the 0.1 fiber/cc standard at COMAR 10.18.15.03B(1)(d)(ii), since that standard appeared to control indoor air pollution. Whether the Department exceeded its authority, therefore, depends on whether the subject regulation reasonably relates to outdoor air pollution.

Looking at the 0.1 fiber/cc standard in the context of the whole regulation, it is clear that it is just one step in a series of work practice standards applicable to asbestos projects which exceed a certain minimum size. A person engaged in such a project must first enclose and seal off the area where asbestos will be removed. This is to prevent asbestos from being discharged to the atmosphere through windows, doors, and ventilation systems during the asbestos removal work. The asbestos which has been removed must be placed in specially sealed containers and then transported and disposed of at approved sites. These precautions are also designed to prevent the escape of asbestos to the outdoor atmosphere. Finally, once the work has been completed, the plastic enclosure must be carefully cleaned to remove any asbestos residue before the enclosure can be dismantled. Again, the reason for this precaution is to prevent reentrainment of the asbestos fibers and escape into the atmosphere.

The monitoring requirement and the 0.1 fiber/cc standard were included as an objective method of determining adequate clean-up of the asbestos project site. The 0.1 standard is, therefore, a logical part of an overall scheme to minimize the discharge of airborne asbestos during asbestos projects by requiring total enclosure of the site during the work and thorough clean-up after the work is completed. When the provision in question is viewed in this context, the nexus to the outdoor atmosphere is clear and the authority of the Department to promulgate it necessarily follows.

In summary, we believe that the State Air Quality Act and, specifically, §2-101 provides adequate authority for the promulgation of COMAR 10.18.15.03B(1)(d)(ii).

Dennis M. Sweeney, Chief General Counsel
Ann Marie DeBiase, Assistant Attorney General