ELR Citation: ELR 21235
No(s). 2:90-0497-1 (D.S.C. Aug 3, 1992)

The court holds that asbestos is a hazardous waste under the Resource Conservation and Recovery Act (RCRA) and 10 U.S.C. §7311, which requires the Navy to identify and quantify the type and amount of hazardous wastes expected to be generated during the performance of contracts, and renegotiate contracts where wastes differ in type or amount than those identified. During performance of a repair and maintenance contract on a naval vessel, the appellant contractor discovered asbestos, which was not identified in the contract, in the insulation and lagging material. Compliance with special treatment, storage, transportation, and disposal requirements for asbestos caused the cost for the job to exceed plaintiff's bid. The court first holds that the Navy is required to renegotiate the contract. The Navy failed to specifically identify the amount of asbestos as required, so despite a standard provision in the contract that all insulation and lagging was to be considered asbestos, the contractor was surprised by the amount of asbestos it encountered. Since Congress clearly intended the Navy to identify and quantify hazardous waste, the attempt to shift the burden of identifying and quantifying hazardous waste to the contractor through the standard provision is inconsistent with the Navy's duty. The legislative history shows that the statute's purpose is to protect contractors who discover unidentified and unquantified wastes from harmful economic consequences not of their making. The court next holds that although asbestos is not listed in regulations under RCRA, it is a hazardous waste within the meaning of the Act. Asbestos satisfies RCRA definitions of hazardous waste because it causes or significantly contributes to an increase in mortality and an increase in serious irreversible or incapacitating reversible illness, and it may pose a substantial present or potential hazard to human health when improperly treated, stored, transported, disposed of, or otherwise managed. The court next holds that in order to satisfy §7311's purpose, asbestos must be considered a hazardous waste under §7311. Asbestos may be as much as 1000 percent more costly to deal with than other insulation. Additionally, waste asbestos is considered hazardous waste in the industry, and other naval vessels have considered asbestos as a hazardous waste for purposes of §7311. Finally, the court holds that a 1989 amendment to §7311 did not affect the renegotiation aspect of the law.

Counsel for Appellant
Marvin D. Infinger
Sinkler & Boyd
160 E. Bay St., P.O. Box 340, Charleston SC 29402
(803) 722-3366

Counsel for Appellee
John H. Douglas, Ass't U.S. Attorney
U.S. Attorney's Office
83 Broad St., P.O. Box 978, Charleston SC 29402
(803) 727-4381