Was the vinyl floor ACM or RACM?

Notwithstanding this evidence, Friedman & Schmitt argue that "vinyl floor is Category I ACM, but not necessarily RACM, depending upon how it is removed. The EPA offered no evidence on the method of removal for the Calderwood linoleum."

In other words, Friedman & Schmitt argue that the linoleum can fall under part (c) or (d) of the above-referenced definition of RACM only if the Region submitted evidence showing that the asbestos containing linoleum was subject to sanding, grinding, cutting or abrading, or was crumbled, pulverized or reduced to powder in the course of the renovation activity.

We reject this argument, however, because parts (c) and (d) of the definition relate to "nonfriable" asbestos containing material, and the evidence in the record of this case shows that the linoleum was, in fact, "friable." In particular, as noted above, Friedman & Schmitt’s consultant stated in the June 1996 Report that "[a]ll of the asbestos-containing linoleum in the designated apartments of each structure are classified as friable, regulated asbestos-containing materials (RACM)." There is no contrary evidence in the record that would suggest that the linoleum in question had not become friable.

Parts (a) and (b) of the definition of RACM provides that asbestos containing material that has become friable prior to the renovation or demolition activity is RACM, without regard for how it is handled during the renovation. Accordingly, we find that the Region sustained its burden of proving that the 264 square feet of linoleum Mr. Schmitt removed from the Calderwood Apartments was RACM. We therefore reverse the ALJ’s decision on this issue.