Judgment: Commonwealth of Massachusetts vs. Columbia Construction Co et al

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COMMONWEALTH OF MASSACHUSETTS

 

 

SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION 1784CV03900
)
COMMONWEALTH OF MASSACHUSETTS, —)
)
Plaintiff, )
)
v. )
)
COLUMBIA CONSTRUCTION CO., )
)
Defendant. )
)
)
)
CONSENT JUDGMENT

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3INTRODUCTION

WHEREAS, Plaintiff, the Commonwealth of Massachusetts (the Commonwealth), acting
by and through the Attorney General and the Massachusetts Department of Environmental
Protection (the Department), has filed a Complaint in this action alleging that Defendant,
Columbia Construction Co. (Columbia Construction), has violated the Massachusetts Clean Air
Act, G.L. c. 111, §§ 1424-0 and its implementing regulations, 310 C.MLR. 7.15, at the
Archbishop Williams High School located in Braintree, Massachusetts;

WHEREAS, the Complaint alleges that while demolishing and replacing the Archbishop
Williams High School’s heating system in 2014 (the “Project”), Columbia Construction’s
subcontractors disturbed asbestos-containing insulation material contained in certain mechanical
spaces, classrooms, and other rooms by cutting piping, conduit, brackets, and other components
associated with the heating system; by removing and transporting within the school some of

‘those components, including certain unit ventilators, and associated debris and, in certain
mechanical spaces, by installing new heating system equipment in those spaces, all without using
the legally required prior notice, handling, storage, and labeling procedures that would have
prevented a risk of exposure of the school’s students and employees, the demolition workers, and
the public to asbestos;

WHEREAS, the Commonwealth’s Complaint seeks injunctive relief and the assessment
of civil penalties against Columbia Construction based on the violations of G.L. c. 111, §§ 142A-
O and 310 C.M_R. 7.15 alleged in its Complaint, which alleged violations arose as a result of the
Project (the “Claims”);

WHEREAS, Columbia Construction expressly denies all of the allegations in the

Commonwealth’s Complaint, and its agreement to this Consent Judgment does not represent an: admission of facts, law, or of the validity or viability of any of the Claims asserted by the
Commonwealth against it;
WHEREAS, the Commonwealth and Columbia Construction (collectively, the “Parties”)
“have reached an agreement to resolve the Commonwealth’s Claims against Columbia
Construction, including an agreement on the amount of a civil penalty to be paid;

WHEREAS, due to the costs and uncertainty associated with litigation, the Parties have
agreed to resolve the Claims by the entry of this Consent Judgment without a trial on any issues
and agree that the entry of this Consent Judgment is an appropriate means to resolve this case;
and

WHEREAS, the Parties agree that the settlement of this matter has been negotiated in
good faith and at arm’s length; that implementation of this Consent Judgment will avoid
prolonged and complicated litigation between the Parties; and that this Consent Judgment is
consistent with the goals of the Massachusetts Clean Air Act, G.L. c. 111, §§ 142A-O and is in
the public interest;

NOW, THEREFORE, based on the Joint Motion of the Parties for Entry of this Consent
Judgment, and before taking any testimony and without the adjudication of any issue of fact or
law except as provided in Section II (Jurisdiction and Venue), it is ADJUDGED, ORDERED,
AND DECREED, as follows:

Tl. JURISDICTION AND VENUE
1. The Superior Court has jurisdiction over the subject matter of this action and over the
parties to it pursuant to G.L. c. 111, § 142A; G.L. c. 214, §§ 1, 3(12); and G.L. c. 231A, § 1.

Venue is proper in Suffolk County pursuant to G.L. c. 223, § 5.2. The Complaint alleges facts, which, if proven, would constitute good and sufficient
grounds for the relief set forth in this Consent Judgment.

Il. PARTIES BOUND

3. This Consent Judgment shall constitute a binding agreement between the Parties, and
Columbia Construction consents to its entry as a final judgment by the Court and waives all
rights of appeal upon its entry on the docket. If the Superior Court declines to enter this Consent
Judgment on any ground except one related to form, this Consent Judgment is voidable at the
option of either Party within fourteen (14) days of the Court’s decision. If, on the other hand, the
Superior Court determines that substantive modifications to this Consent Judgment are necessary
prior to the Court’s entry of it, the Parties shall enter into good faith negotiations to discuss the
modifications, and this Consent Judgment shall be void unless the Parties agree otherwise in
writing within fourteen (14) days of the Court’s decision.

4. The provisions of this Consent Judgment shall apply to and bind Columbia
Construction, and any person or entity acting by, for, or through Columbia Construction,
including Columbia Construction’s managers, directors, officers, supervisors, employees, agents,
servants, attorneys-in-fact, successors, and assigns, and those persons in active concert or
participation with Columbia Construction who receive notice of this Consent Judgment.

5. Columbia Construction shall provide a true copy of this Consent Judgment to all of its
managers, directors, officers, supervisors, employees, and agents whose duties might include
compliance with any provision of this Consent Judgment.

6. Columbia Construction shall not violate this Consent Judgment, and Columbia
Construction shall not allow its officers, directors, agents, servants, attorneys-in-fact, employees,

successors, assigns, or contractors to violate this Consent Judgment. In any action to enforce thisConsent Judgment, Columbia Construction shall not raise as a defense the failure by any of its
managers, directors, officers, supervisors, employees, agents, or contractors to take any actions
necessary to comply with the provisions of this Consent Judgment.

7. Jn addition to any relief specifically provided in this Consent Judgment, Columbia
Construction understands and agrees that violations of this Consent Judgment may be punishable
by contempt.

IV. PAYMENT OF CIVIL PENALTIES

8. Columbia Construction shall pay to the Commonwealth a civil penalty pursuant to the
Massachusetts Clean Air Act, G.L. c. 111, § 142A of one-hundred and twenty thousand dollars
($120,000.00) in the following manner:

9. Within thirty (30) days of entry of this Consent Judgment, Columbia Construction
shall pay the Commonwealth the sum of one-hundred thousand dollars ($100,000.00).

10. The balance of the civil penalty, being twenty thousand dollars ($20,000.00), shall be
suspended (Suspended Penalty) and shall be waived on the condition that Columbia Construction
has timely complied with all of the requirements of the Consent Judgment. If the
Commonwealth believes that Columbia Construction has not timely complied with one or more
of the terms of this Consent Judgment, then it shall notify Columbia Construction in writing of .
that determination and Columbia Construction shall pay the Suspended Penalty to the
Commonwealth within thirty (30) days of the written determination, unless Columbia
‘Construction requests reconsideration of the Commonwealth’s determination pursuant to Section
VIII (Dispute Resolution). If Columbia Construction requests reconsideration pursuant to
Section VIII (Dispute Resohition) and the Commonwealth’s determination ultimately becomes

final or is otherwise upheld in whole or in part, Columbia Construction shall pay the SuspendedPenalty to the Commonwealth within fifteen (15) days after the Commonwealth’s determination
is final or the court’s decision is entered on the docket.

11. Columbia Construction shall make the above-described civil penalty payment by
certified check payable to the Commonwealth of Massachusetts and sent to the Attorney
General’s Office in accordance with Section XI (Notices). Each check shall include on its face
the following information: Commonwealth v. Columbia Construction Co., Suffolk Super. Crt.,

1784CV03900.

Vv. INJUNCTIVE RELIEF

12. Provision of Asbestos Training to Project Superintendents. Beginning within sixty
(60) days of entry of this Consent Judgment, Columbia Construction shall ensure, for any project
that falls into at least one of the project categories listed below, that the Columbia Construction
project superintendent for the project has completed an Asbestos-Associated Project Workers
Training, see 453 C.M.R. 6.10(4)(h), conducted by a training provider accredited by the
Massachusetts Department of Labor Standards. This requirement shall apply to all projects for
which Columbia Construction serves as the general contractor and in which:

a. An “asbestos abatement,” as that term is defined at 453 C.MLR. 6.02, is occurring
as part of the project;

b. An asbestos “survey” has identified known or suspected “asbestos containing
material” in the area of a “facility” in which “demolition” or “renovation” work is
intended to be performed as part of the project, where there is a potential that the
“demolition” or “renovation” work may cause a “disturbance” of such material
(the meanings of all terms in quotations are defined at 310 C.MLR. 7.15(1), and

the term “survey” is further defined at 310 C.MLR. 7.15(4));c. A “school” or “school building,” as those terms are defined at 40 C.F.R. 763.83,
is part of the project, unless the school building(s) at issue meets the requirements
of 40 C.F.R. 763.99(a)(7) (certification by an architect or project engineer
responsible for construction of a new school building that no asbestos containing
building material was used as a building material in the school building); or

d. A residential apartment building, consisting of greater than ten living units, is part
of the project, where that building was constructed in whole or in part prior to
1989. .

The training requirement specified by this Paragraph shall remain in effect for three years
following the date of entry of this Consent Judgment. Within sixty (60) days of the entry of this
Consent Judgment, Columbia Construction shall submit to the Department and the
Massachusetts Department of Labor Standards (Departments), with a copy to the Attorney
General, a written certification that at least one of its project superintendents has completed,
within the preceding year, the Asbestos-Associated Project Workers Training specified above in
this Paragraph, along with supporting documentation from the training provider (e.g., a
certification of completion from the trainer). For each of the three years following entry of this
Consent Judgment, within thirty (30) days of the anniversary date of the entry of this Consent
Judgment, Columbia Construction shall submit to the Departments, with a copy to the Attorney
General, a written certification.that it continues to employ at least one project superintendent
who has completed, within the preceding year, the Asbestos-Associated Project Workers
Training specified above in this Paragraph or, if that project superintendent has previously
completed that training, that the project superintendent has, within the preceding year, completed

an Asbestos-Associated Project Worker Refresher training course, see 453 C.M.R. 6.10(5),conducted by a training provider accredited by the Massachusetts Department of Labor ”
Standards, along with supporting documentation from the training provider (e.g., a certification
of completion from the trainer).

13. Standard Operating Procedures for Asbestos Containing Materials. As part of this
Consent Judgment, Columbia Construction has submitted and the Departments and the Attorney
General have approved the Standard Operating Procedures for Asbestos-Containing Materials
(“ACM SOP”) to be followed by all of its employees engaged in work or in the supervision of
work that may involve the “disturbance” of “asbestos-containing material,” as those terms are
defined at 310 C.M.R. 7.15(1). The approved ACM SOP is attached hereto as Exhibit A.
Within thirty (30) days of entry of this Consent Judgment, Columbia Construction both shall
provide the ACM SOP to all of its employees engaged in work or in the supervision of work that
may involve the disturbance or handling of asbestos-containing material, and shall submit to the
Departments, with a copy to the Attorney General, a written certification that it has done so. The
date of entry of this Consent Judgment shall serve as the date of issuance of the ACM SOP for
the purposes of that document.

14. All requisite reports and other written information that Columbia Construction is
required to send under Section V (Injunctive Relief) of this Consent Judgment shall contain the
following certification:

I certify under penalty of law that I have examined and am familiar with
the information submitted in this document and all attachments to it, and
that this document and its attachments were prepared either by me
personally or under my direction or supervision in a manner designed to
ensure that qualified and knowledgeable personnel properly gathered and
presented the information contained therein. I further certify, based on
personal knowledge or on my inquiry of those individuals immediately
responsible for obtaining the information, that the information is true,

accurate, and complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fines andimprisonment for knowing and willful submission of a materially false
statement. .

15. Columbia Construction shall ensure that each certified statement is signed by a
responsible corporate officer, such as a president, vice-president, secretary, treasurer, or manager
responsible for Columbia Construction’s environmental policy-making, decision-making, and
compliance with environmental laws and regulations and having the authority to make
management decisions that govern Columbia Construction’s operations and to direct and
authorize actions to ensure that Columbia Construction is in compliance with environmental laws
and regulations.

16. Any information provided by Columbia Construction pursuant to this Consent
Judgment may be used by the Commonwealth in any proceeding to enforce the provisions of this
Consent Judgment.

VI. INTEREST AND COLLECTIONS

17. Ifany payment required pursuant to this Consent Judgment is late or not made,
Columbia Construction shall pay interest on any overdue amount for the period of such
nonpayment at the rate of twelve percent (12%) pursuant to G.L. c. 231, § 6B, computed
mouthly, and shall pay all expenses associated with collection by the Commonwealth of the
unpaid amounts and interest for any period of nonpayment after the payment obligation becomes
due, including reasonable attorneys’ fees.

Vil. FORCE MAJEURE ,

18. Columbia Construction shall perform the actions required by Section V (Injunctive
Relief) within the time limits established in that Section, unless the performance is prevented or
delayed solely by events that constitute a force majeure event. A force majeure event is an event

that arises from causes beyond Columbia Construction’s control that will delay or prevent theperformance of any action required by Section V (Injunctive Relief) despite Columbia
Construction’s due diligence. A force majeure event does not include, among other things,
unanticipated or increased costs of performance, changed economic circumstances, or a financial
inability to perform. Except as excused by the Departments pursuant to this Section, delay on
the part of Columbia Construction’s contractors, subcontractors, or consultants shall be
attributable to Columbia Construction.

19. Any request to extend a deadline set forth in Section V (Injunctive Relief), including
a deadline in a plan submitted to the Departments by Columbia Construction pursuant to that
Section, shall be made in writing to the Departments, with a copy to the Attorney General, prior
to the expiration of the deadline. In its written request to the Departments, Columbia
Construction shall describe (a) what action has been affected, (b) the anticipated length of delay,
(c) the cause of the delay, and (d) the steps or measures it will take to prevent or minimize the
delay. Upon receipt of a timely request for an extension under this Section, the Departments
may, in their reasonable discretion, grant additional time if they are persuaded that the delay in
performance is the result of a force majeure event, such approval not to be unreasonably
withheld. If the Departments do not agree that a force majeure event has occurred or do not
agree to the length of the extension of time sought by Columbia Construction and that
disagreement cannot be resolved by informal negotiation, then the Departments will notify
Columbia Construction in writing of the Departments’ position, which shall be binding unless
Columbia Construction invokes the Dispute Resolution procedures set forth in Section VIII
(Dispute Resolution), except that Columbia Construction must invoke those procedures within
twenty-one (21) days after receipt of the Departments’ written notice. In any proceedings under

Section VIII (Dispute Resolution), Columbia Construction shall bear the burden ofdemonstrating, by a preponderance of the evidence, that (a) Columbia Construction provided the
written request required above, (b) the delay in performance is the result of circumstances
beyond Columbia Construction’s control, and (c) Columbia Construction could not have
prevented or avoided the delay by the reasonable exercise of due care, foresight, or due
diligence. Columbia Construction’s failure to comply with the notice requirements of this
Paragraph shall constitute waiver of its right to request an extension of time with regard to any
delay, and a waiver of any right to relief from the deadlines in Section V (Injunctive Relief) or
any plan submitted to the Departments pursuant to that Section.

VIII. DISPUTE RESOLUTION

20. Unless otherwise provided in this Consent Judgment, the Dispute Resolution
procedures in this Section shall be the exclusive mechanism to resolve disputes arising under or
with respect to this Consent Judgment. These procedures, however, shall not apply to actions by
the Commonwealth or the Departments to enforce obligations of Columbia Construction that
have not been disputed in accordance with this Section.

21. If Columbia Construction disagrees with a written determination of the Departments,
then Columbia Construction may, within thirty (30) days of the date of the Departments’
determination, request reconsideration of the determination by submitting to the Departments,
with a copy to the Attorney General, any information or material it believes demonstrates that the
Departments’ determination was erroneous. Unless otherwise provided in this Consent
Judgment, Columbia Construction’s failure to submit a request for reconsideration within the
period specified in this Paragraph shall constitute a waiver of Columbia Construction’s ability to
seek reconsideration and, in that case, the Departments’ determination shall be final and

unreviewable. If, after consideration of a timely request for reconsideration, the Departments

10decide to affirm, in whole or in part, their original determination, then the Departments shall
notify Columbia Construction of their determination on reconsideration.

22. The Departments’ determination on reconsideration shall be final unless Columbia
Construction seeks judicial review of the dispute by filing with the Court and serving on the
Commonwealth, in accordance with Section XI (Notices), a motion in this case requesting
judicial resolution of the dispute within thirty (30) days of receipt of the Departments’
determination. In an action for judicial review under this Section, Columbia Construction shall
bear the burden of demonstrating that the Departments’ determination on reconsideration was
arbitrary and capricious or otherwise not in accordance with law. Columbia Construction’s
motion and supporting memorandum shall not raise any new issues or be based on new facts or
information that Columbia Construction did not present previously to the Departments during the
dispute resolution process described in this Section.

IX. EFFECT OF CONSENT JUDGMENT

23. Upon compliance with the requirements of this Consent Judgment, (a) this Consent
Judgment shall resolve Columbia Construction’s liability for the Claims alleged against it in the
Complaint that arose at least 45 days prior to the-entry of this Consent Judgment, and (b) the
Commonwealth shall release Columbia Construction for liability for the Claims alleged against
Columbia Construction in the Complaint that arose at least 45 days prior to the entry of this
Consent Judgment.

24. Nothing in this Consent Judgment: (a) shall bar any action by the Commonwealth on
any legal claim not specifically pleaded in the Complaint or for any violations not revealed to the
Commonwealth; (b) shall be deemed to excuse compliance by Columbia Construction or any of

the persons or entities otherwise bound by this Consent Judgment with any law or regulation; or

il(c) shall preclude a separate or ancillary action by the Commonwealth to enforce the terms of
this Consent Judgment. The Commonwealth expressly reserves all claims for injunctive relief
“for violations of all of the statutes and regulations referred to in this Consent Judgment, whether
related to the Claims resolved by this Consent Judgment or otherwise.
25. Nothing in this Consent Judgment shall be construed to create any rights in, or grant
any cause of action to, any person not a party to this Judgment.
x. MISCELLANEOUS
26. Columbia Construction understands and agrees that, pursuant to 11 U.S.C.
§ 523(a)(7), the civil penalty and any other costs or sums that Columbia Construction may be
required to pay under this Consent Judgment are not subject to discharge in any bankruptcy.
27. Columbia Construction shall pay all expenses, including reasonable attorneys’ fees
and costs, incurred by the Commonwealth in the enforcement of this Consent Judgment.
28. Columbia Construction waives entry of findings of fact and conclusions of law
pursuant to Rule 52 of the Massachusetts Rules of Civil Procedure.
29. The titles in this Consent Judgment have no independent legal significance and are
used merely for the convenience of the Parties.
30. Massachusetts law shall govern the interpretation and enforcement of this Consent
Judgment.
31. In computing any period of time under this Consent Judgment, where the last day
would fall on a Saturday, Sunda, or State or Federal holiday, the period shall run until the close

of business of the next business day.

12XI. NOTICES
32. Unless otherwise specified in this Consent Judgment, notices and submissions

required by this Judgment shall be made in writing by first class mail to the following addresses:

For the Attorney General’s Office and the
Commonwealth:

Tracy Triplett

Assistant Attorney General
Environmental Protection Division
Office of the Attorney General
One Ashburton Place, 18th Floor
Boston, MA 02108
Tracy.Triplett@mass.gov

For Columbia Construction Co.:

Hugh J. Gorman, III

Prince Lobel Tye LLP

One International Place, Suite 3700
Boston, MA 02110

HGorman@princelobel.com

With a copy to:

James M. Marsh

Vice Chairman

Columbia Construction Company
100 Riverpark Drive

North Reading, MA 01864

JImarsh@columbiace.com

13

For the Massachusetts Department of
Environmental Protection:

Cynthia Baran

MassDEP Southeast Region
20 Riverside Drive
Lakeview, MA 02347
Cynthia. Baran@mass.gov

For the Massachusetts Department of
Labor Standards

Michael Flanagan, Manager

Mass. Department of Labor Standards
Health and Safety Programs

19 Staniford Street

Boston, MA, 02114
Michael.Flanagan@mass.govor, to such other place or to the attention of such other individual asa Party may from time to
time designate by written notice to the other Party to this Consent Judgment.
Xl. INTEGRATION

33. Except as expressly set forth in this Consent Judgment, this Consent Judgment sets
forth all of the obligations of the Parties and represents the complete and exclusive statement of
the Parties with respect to the terms of the settlement agreement embodied by this Consent
Judgment; any other representations, communications, or agreements by or between the Parties
shall have no force and effect.

XII. MODIFICATION

34, The terms of this Consent Judgment may be modified only by a subsequent written
agreement signed by the Parties. Where the modification constitutes a material change to any
term of this Consent Judgment, it shall be effective only by written approval of the Parties and
the approval of the Court. The Commonwealth’s decision to extend a deadline in this Consent
Judgment shall not constitute a material change for purposes of this Paragraph.

35. Any disputes concerning modification of this Judgment shall be resolved pursuant to
Section VIII (Dispute Resolution) of this Consent Judgment, provided, however, that instead of
the burden of proof provided in Section VII (Dispute Resolution), the party seeking the
modification bears the burden of demonstrating that it is entitled to the requested modification in
accordance with Rule 60(b) of the Massachusetts Rules of Civil Procedure.

XIV. AUTHORITY OF SIGNATORY

36. The person signing this Consent Judgment on behalf of Columbia Construction

acknowledges: (a) that he or she has personally read and understands each of the numbered

Paragraphs of this Consent Judgment, including any Appendices attached to it; (b) that, to the

14extent necessary, Columbia Construction’s managers, directors, officers, and shareholders have
consented to Columbia Construction entering into this Consent Judgment and to its entry as a
Final Judgment; and (c) that he or she is authorized to sign and bind Columbia Construction to
the terms of this Consent Judgment.
XV. EFFECTIVE DATE
37. This Consent Judgment shall be effective when the Court enters the Consent
Judgment on the docket.
XVI. RETENTION OF JURISDICTION
38. The Court shall retain jurisdiction over this case for purposes of resolving disputes
that arise under this Consent Judgment, entering orders modifying this Consent Judgment, or
effectuating or enforcing compliance with the terms of this Consent Judgment.
XVI. FINAL JUDGMENT
39. Upon approval and entry of this Consent Judgment by the Court, this Consent

Judgment shall constitute a Final Judgment of the Court.

IT IS SO ORDERED. JUDGMENT is hereby entered in accordance with the
foregoing.

By the Court:

»

{ zee SUPERIOR COURT

. @l24/ 14

Date

15The Undersigned Parties enter into this Consent Judgment in the matter of

Commonwealth v. Archbishop Williams High School, Inc., et al. (Suffolk Superior Court).

FOR THE COMMONWEALTH OF

MASSACHUSETTS

MAURA HEALEY
ATTORNEY GENERAL

rete, Gyre

Tracy L. Triplett”

Assistant Attorney General
Environmental Protection Division
Office of the Attorney General
One Ashburton Place, 18th Floor
Boston, MA 02108

(617) 963-2436

Dated: June24, 2019

FOR COLUMBIA CONSTRUCTION CO.

  

iverpark Drive
North Reading, MA 01864
(978) 664-9500

Dated: June 4, 2019

16EXHIBIT A
(APPROVED ACM SOP)RECEIVE?
JUN 17 2019

OFFICE OF THe ATIORNEY GUT PAL
ENVIRONMENTAL PROTECTION [IVLUMBIA

Construction Company
(May 1, 2019)

STANDARD OPERATING PROCEDURES FOR
ASBESTOS-CONTAINING MATERIALS

Prepared By:

 
   

\CASHINS&
a= Associates, Inc.

= Ingustrial Hygiene & Environmental Testing
Cashins &Associates
599 North Ave, Suite 8
Wakefield, MA 01880Contents

PART I: HAZARDOUS BUILDING MATERIALS PLAN.:

 

 
 
 

 

1.1 Purpose
1.2 Roles. -7
1.3. Budgeting and Bidding Process/Estimating ....
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9.7 COMMUMication oo... cece esse ccee cece ceecseeceesceseaesenesaesceecaesetesaeseeecseesereeesenenecnese 13
1.8 — Post-ComStruction ......0...ccecccesesesecsessstee sae cae cae cecceceecescesseseneeseseaseasenseneaeeets 13
PART II: RESPONSE ACTIONS o.oo... cee ccececcceccceeeeseeeseeeseaeeeecaeesenesereseseatsnsceeceeneneneatannese 15
IN CASE OF DISTURBANCE OF ASBESTOS CONTAINING MATERIAL. .........-e-eeeeee 15
IN CASE OF DISCOVERY OF NEW SUSPECT MATERIAL. ..0.....ee cece cceeeesteneteteeeees 15
IN CASE OF CHANGE IN ABATEMENT SCOPE OR SCHEDULE... ceeeceseeeseeeeeteeteees 16

APPENDIX A: ASBESTOS REPORT REVIEWFORM

APPENDIX B: DAILY ASBESTOS ABATEMENT CHECKLIST
APPENDIX C: ASBESTOS QUANTITIES TRACKING SHEET
APPENDIX D: INCIDENT REPORT

APPENDIX E: CONTACT INFORMATIONCOLUMBIA 3 of 22
ASBESTOS SOP

PART |: ASBESTOS BUILDING MATERIALS PLAN

 

1.1. Purpose

The purpose of this document, the Standard Operating Procedures for
Asbestos-Containing Material (“SOP”) is to provide guidance for Project
Superintendents, Project Managers, Safety Managers, and other field
personnel during periods in which asbestos abatement is occurring
alongside construction activities, or, if Columbia is issued a license to
perform asbestos abatement work, for when Columbia has contracted
the abatement directly.

1.1.1 Asbestos Risk and Uses

The health impacts of asbestos have been well documented for over a
century. If it is handled and maintained properly, asbestos can be used
without significant health risks. However, if asbestos fibers are released into
the air and inhaled, they can cause life-threatening illnesses, including
asbestosis, lung cancer, and mesothelioma.

Asbestos can be present in many forms on construction/demolition sites. It
has been used in a variety of construction materials dating back to the
1800s, including insulation, cement pipe, roofing felts and shingles, vinyl
floor tile, coatings on walls and ceilings, ceiling tiles, window glazing and
caulking, and wallboard.

1.1.2 Standard Operating Procedures

It is the intention of Columbia Construction Company to follow all state
and federal regulations regarding asbestos, to maintain a safe work
environment during asbestos abatement, to develop and use an efficient
and effective system of communication, and to consistently maintain a
record of such efforts in regular documentation.

In order to achieve this, Columbia has created this SOP, which is meant
to standardize all action related to asbestos on construction sites.

A copy of this SOP must be kept on-site at all times for the duration of
the entire project, even when asbestos abatement is not foreseen.
Failure to comply with the requirements set forth in this SOP may result
in state or federal criminal charges, or monetary fines.COLUMBIA 4 of 22
ASBESTOS SOP

This SOP shall be updated as needed based on changes in Massachusetts
General Law and Massachusetts Department of Environmental Protection
(DEP) and Massachusetts Department of Labor Standards (DLS)
regulations and policies, and applicable federal law and US Environmental
Protection Agency (EPA) and Occupational Safety and Health
Administration (OSHA) regulations and policies. Nothing in this SOP should
be read to conflict with applicable state or federal law, including but not
limited to DEP regulations at 310 CMR 7.15, DLS regulations at 453 CMR
6.00, et seg., EPA regulations at 40 CFR 61.140 ef seg. and 40 CFR
763.80, et seg., and OSHA regulations at 29 CFR 1910.1001.

Further, notwithstanding this SOP, Columbia also acknowledges its ultimate
responsibility to comply with the procedures and requirements set forth
inapplicable state and federal statutes and regulations, including but not
limited to DEP regulations at 310 CMR 7.15, DLS regulations at 453 CMR
6.00, ef seq., EPA regulations at 40 CFR 61.140 ef seg. and 40 CFR 763.80,
et seq., and OSHA regulations at 29 CFR 1910.1001.

1.1.3 Regulatory Requirements

Several State and Federal regulations govern the handling and storage of
asbestos containing materials in the demolition and renovation context
including the following:

* EPA-40 CFR Part 61.145 — Standard for demolition and
renovation of the National Emission Standard for Hazardous Air
Pollutants (NESHAP).

The regulations require a thorough inspection where the demolition or
renovation operation will occur. The regulations require the owner or
the operator of the renovation or demolition operation to notify the

appropriate entity (often a state agency) before any
demolition, or before any renovations of buildings that contain at least
260 linear feet on pipes or at least 160 square feet on other facility
components, or at least 35 cubic feet off facility components. The rule
tequires work practice standards that control asbestos emissions.
Work practices often involve removing all asbestos-containing
materials, adequately wetting all regulated asbestos-containing
materials, sealing the material in leak-tight containers and disposing
of the asbestos-containing waste material as expediently as
practicable, as the regulation explains in greater detail.

These work practice standards are designed to minimize the release

of asbestos fibers during building demolition or renovation, waste

packaging, transportation and disposal. When buildings are under
renovation, they are not being demolished, but asbestos-COLUMBIA 5 of 22
ASBESTOS SOP

containing building material is being removed or disturbed.
Performing the work in accordance with the Asbestos NESHAP helps
to ensure that areas in use during the renovation are not
contaminated and that the area under renovation, when it is
complete, is also free of contamination.

EPA - 40 CFR Part 763, Subpart E — Asbestos- Containing
Materials in Schools (i.e. AHERA).

AHERA and its regulations require public school districts and non-
profit schools including charter schools and schools affiliated with
religious institutions to inspect their schools for asbestos-containing
building material, prepare management plans, and to take action to
prevent or reduce asbestos hazards. These legal requirements are
founded on the principle of "in-place" management of asbestos-
containing material. Removal of these materials is not usually
necessary unless the material is severely damaged or will be
disturbed by a building demolition or renovation project.

Personnel working on asbestos activities in schools must be trained
and accredited in accordance with the Asbestos Model Accreditation
Plan. In addition, if removal of asbestos during renovation is
warranted, or school buildings will be demolished, public school
districts and non-profit schools must comply with the © NESHAP.

DLS - 453 CMR 6.00 — Removal, Containment, or Encapsulation
of Asbestos.

This regulation applies to all work, including construction, demolition,
alteration, repair and maintenance involving any facility or location,
where such work involves the use, handling or disposal of asbestos,
asbestos-containing material or asbestos-contaminated waste. The
regulation also applies to asbestos training, consultation and/or
analytical services, including but not limited to: asbestos inspection
and hazard assessment services, the preparation of asbestos
project designs, asbestos project oversight and/or monitoring,
asbestos training required by 453 CMR 6.00, and asbestos analysis
performed in connection with any of the above services.

DEP - 310 CMR 7.15. - Massachusetts asbestos regulation

This regulation applies to any persons engaged in asbestos
abatement activities or associated activities including, but not limited
to asbestos abatement activity which is the removal, encapsulation,
demolition, renovation, enclosure, repair, disturbance, handling,
transportation, storage, or disposal of asbestos-containing material or
asbestos-containing waste material or any other activity involving
asbestos- containing material or asbestos-containing wasteCOLUMBIA 6 of 22
ASBESTOS SOP

material that has the potential to result in a condition of air pollution
as defined in 310 C.M.R. 7.15(1).

Like the NESHAP, tt requires the owner and operator of the
renovation or demolition operation to notify DEP before any
demolition or renovations of buildings or facility components. The rule
requires work practice standards that control asbestos emissions.
Work practices often involve removing all asbestos-containing
materials, adequately wetting all regulated asbestos-containing
materials, sealing the material in leak-tight containers and disposing
of the asbestos-containing waste material as expediently as
practicable, as the regulation explains in greater detail.

There are also Federal and State regulations that govern worker protection
requirements for those

who will, or may disturb, asbestos-containing materials. These include the
following:

OSHA - 29 CFR 1910.1400-General Industry Asbestos Standard.

The standard states that a respirator shall be provided to each
employee when such equipment is necessary to protect the health of
such employee. The employer shall provide the respirators which are
applicable and suitable for the purpose intended and the employer
shall be responsible for the establishment and maintenance of a
respiratory protection program which shall cover each employee
required to use a respirator.

OSHA - 29 CFR 1926.1101-Construction Industry Asbestos
Standard.

This Rule regulates asbestos exposure in work including but not
limited to demolition or salvage of structures where asbestos is
present; removal or encapsulation of materials containing asbestos;
construction, alteration, repair, maintenance, or renovation of
structures, substrates, or portions thereof, that contain asbestos;
installation of products containing asbestos; asbestos spill/emergency
cleanup; and transportation, disposal, storage, containment of and
housekeeping activities involving asbestos or products containing
asbestos, on the site or location at which construction activities are
performed. Personal Exposure Monitoring for all employees involved
in asbestos projects in accordance with OSHA Asbestos Regulations
29 CFR Part 1926.1101(f); Respiratory Protection provided for all
employees involved in asbestos projects as specified by 29 CFR Part
1926.1101(h); Protective Clothing and Equipment provided to all
employees involved in asbestos projects with full body disposable
clothing, including head, body, and foot coverings consisting of
material impenetrable by asbestos fibers, and equipment as required
by OSHA Asbestos Regulations 29 CFR Part 1926.1101(i);COLUMBIA 7 of 22
ASBESTOS SOP

Medical Monitoring provided to all employees engaged in asbestos
projects with the medical monitoring specified by OSHA Asbestos
Regulations 29 CFR Part 1926.1101(m); Training appropriate to the
employees work tasks in accordance with 29 CFR 1926.1101(k)(9).

1.2. Roles

The following are summaries of the respective responsibilities of various
parties involved in the construction process with regards to asbestos:

1.2.1 Owner

The owner is ultimately responsible for knowing what is in his or her
building. However, both owners and operators are responsible for
carrying out a NESHAP asbestos inspection prior to renovation or
demolition work which would disturb suspect asbestos-containing
material (ACM). The owner is also responsible for communicating this
information to firms bidding on projects related to the building as well as
to employees who work with or adjacent to materials. Should additional
suspect ACM be discovered before or during a project, owners and
operators are responsible to have the material sampled and analyzed for
asbestos content.

1.2.2 Columbia

As the "General Contractor" on the project, OSHA requires that Columbia
take on a leadership role with respect to asbestos containing materials. As
it states in its Standard for the Construction Industry, "All general
contractors on a construction project... shall be deemed to exercise
general supervisory authority over the work covered by this standard." It
also states that "the general contractor shall ascertain whether the
asbestos contractor is in compliance with this standard, and shall require
such contractor to come into compliance with this standard when
necessary." 29 CFR 1926.1101(d)5).

In short, Columbia has an overall responsibility to ensure that workers are
protected during asbestos abatement work, and that pertinent information
related to asbestos is relayed to other employers and employees on a site
in a timely manner. Columbia must take steps to ensure that the
abatement company is in compliance with asbestos regulations, which
may include, but is not limited to employing a properly-certified asbestos
professional to monitor conditions inside and around work areas involving
asbestos.COLUMBIA 8 of 22
ASBESTOS SOP

In addition, Columbia must ensure that all suspect ACM has been
identified, sampled, and analyzed prior to impacting it. Should suspect
ACM be discovered, Columbia must ensure that work stops and that the
material is sampled and analyzed as described in more detail below in
Section I]. Responsibility for the retention and payment of third party
consultants to perform the testing is an issue that must be worked out
between Columbia and the owner.

1.2.3 Employers

Employers of other trades, including supervisors, foremen, and the like,
also have a responsibility for the safety of the employees under their
charge. This means that they must be aware of all testing that has been
performed and that they communicate asbestos-related information to
their employees. They must also ensure that asbestos abatement
contractors are complying with regulations and that unidentified suspect
materials are not disturbed prior to being sampled and analyzed. To this
end, Columbia must ensure that its employees are trained to respond to
the presence of asbestos at work sites as described below in Section
1.5.

1.2.4 Employees

Employees must ensure that all suspect materials that they are impacting
during the course of their work have been sampled and analyzed for
asbestos. Should employees discover unidentified suspect ACBM, they
must stop work and notify a supervisory authority. The materials must be
sampled and analyzed prior to being impacted.

1.3. Budgeting and Bidding Process/Estimating

During the preconstruction and/or estimating process of every project
Columbia shall request copies of all asbestos surveys required by 310
C.M.R. 7.15(4) and 40 C.F.R. 61.145(a) (asbestos surveys) that may
have been performed for the project work site, as well as any other
documentation of past asbestos abatement activities and associated
clearance reports. If the project involves a school building, Columbia
shall also request the documents that the relevant local education
authority is required to maintain pursuant to AHERA, including the
AHERA management plan and all inspection, reinspection, and
surveillance reports. If available, any reports will be forwarded to Cashins
& Associates, where they will be reviewed in order to ensure thatCOLUMBIA 8 of 22
ASBESTOS SOP

sufficient investigation and sampling have been performed. A
representative from Cashins & Associates will then complete the
"Asbestos Report Review" sheet included at the end of this document.
Upon receipt of Cashins & Associates report, Columbia's pre-con
/estimating

personnel will review and identify potential areas of the project

which may have hazardous materials that could be disturbed during
construction activities.

In the event that there are no available asbestos documents for a
project, Columbia's pre- con/estimating personnel must establish a
hazardous material qualification on any budget or bid and notify the
Project Management team of the same.

All information, related to hazardous materials including Cashins &
Associates’s Report, previously performed surveys, emails, photos,
and any other pertinent documents, will be centralized into a folder
in the Extranet's File Manager created specifically for hazardous
materials.

1.4 Responsibility

Once a project team has been assembled, a single person wil! be selected

"to be responsible for the day to day oversight of this program. This person
shall be called the Asbestos Responsible Person (ARP). The ARP will
collect pertinent paperwork, fill out daily checklists, perform duties related
to hazard communication, and will log all notable occurrénces related to
asbestos abatement. The ARP will also become familiarized with the
content of this document, and will be knowledgeable beforehand
regarding Columbia's SOPs in the wake of certain asbestos-related
events. The ARP must also fully understand the emergency
communication structure and have all contact information organized and
readily available.

The ARP must be an individual who is on-site on a regular basis. This
individual must have general knowledge of asbestos regulations and the
general process of asbestos abatement.

Individualized training may be required in some instances.

In the event that the ARP is replaced temporarily or permanently, it will
be the responsibility of the ARP to ensure that the replacement fullyCOLUMBIA 10 of 22
ASBESTOS SOP

understands the content of this SOP, and all information related to
asbestos abatement at that project. This transfer must occur in such a
way that the day to day duties and documentation performed by the
ARP is not interrupted.

The ARP may, but fs not required to be the same person as the
designated asbestos Competent Person required by OSHA regulations
at 29 CFR 1926.1101(0) where that regulation is applicable.

1.5. Pre-Construction

An asbestos orientation/training session will be provided to all
workers at a project as part of the orientation procedure. This training
will go over the basics of asbestos (e.g. health effects, regulations,
types of materials, and the like), as well as a detailed explanation as
to the ACM located on site. Actual site photos will be used during the
presentation. The orientation shall also include a review of the
requirements and practices set forth in this SOP. This training shall be
performed by Columbia personnel or a third-party consultant. If possible, a
representative from the asbestos abatement contractor will be invalved
in a portion of these trainings in order to introduce themselves and
describe exactly what it is that they will be doing and the measures
they take to keep people safe.

No one shall perform work on the project at the work site without
attending this training prior to beginning work on the project. A sign-in
sheet shall be used to document attendance and compliance. Columbia
shall keep and maintain sign-in sheets to document successful completion of
this training.

In addition, the Columbia project superintendent shall have additional
training requirements if a project involves work at certain kinds of work sites.
In such cases, the Columbia project superintendent shall have completed an
Asbestos-Associated Project Workers Training, as defined in 453 C.M.R.
6.10(4)(h), conducted by a training provided accredited by DLS. This
requirement applies to sites where Columbia serves as the general
contractor and in which one of the following has occurred:

* An ‘asbestos abatement,” as that term is defined at 453 C.M.R. 6.02,
is occurring as part of the project;
° An asbestos “survey” has identified known or suspected “asbestos1.6

COLUMBIA 11 of 22
ASBESTOS SOP

containing material” in the area of a “facility” in which “demolition” or
“renovation” work is intended to be performed as part of the project,
where there is a potential that the “demolition” or “renovation” work
may cause a “disturbance” of such material (the meanings of all terms
in quotations are defined at 310 C.M.R. 7.15(1), and the term “survey”
is further defined at 310 C.M.R. 7.15(4)); -

A “schoo!” or “school building,” as those terms are defined at 40 C.F.R.
763.83, is part of the project, unless the school building(s) at issue
meets the requirements of 40 C.F.R. 763.99(a)(7) (certification by an
architect or project engineer responsible for construction of a new
schoo! building that no asbestos containing building material was used
as a building material in the school building); or

A residential apartment building, consisting of greater than ten living
units, is part of the project, where that building was constructed in
whole or in part prior to 1989.

Construction

As described above in Section 1.4, a single individual from Columbia's
staff will be selected to be the ARP for the entire project. The ARP will
familiarize him/herself with all documentation related to ACM at the site.
Further, he or she will be present and involved in the pre-construction
worker orientation and training.

On a daily basis the ARP shall:

Inspect asbestos abatement containments and fill out the Daily
Asbestos Checklist (Appendix B). To the extent that this requires
entry into a containment, the ARP shall either be properly certified by
DLS to do so or shall require such information be provided by the
licensed abatement company performing the work, which shall certify
in writing its accuracy.

Record types and quantities of materials removed

Collect results of any area air samples (if applicable)

On an as-needed basis, the ARP shall:

Serve as a liaison between Columbia andthe contractor.
Respond when new suspect ACM is discovered or when
known ACM is disturbed, including by ensuring that the
response actions required in Section II are implemented and
that DEP and DLS are properly notified. When ACM is
unexpectedly disturbed, DEP must be notified i