WISE Consulting & Training, Inc.

Today’s Existing Asbestos Concerns Contractors
J. Tom Wise
President/Technical Director
Wise Consulting and Training, Inc.

Is asbestos still an issue for renovation projects, or has it literally disappeared from buildings and therefore been removed from the list of concerns contractors and subcontractors face today? Answering this question requires a recollection of the key factors that make asbestos the biggest regulatory enforcement and litigation issue the U.S. construction industry has ever faced.

Asbestos was once a miracle mineral fiber that manufacturers were proud to promote on packaging labels and incorporate in product names. Today, however, a drastic transformation has made asbestos a feared commodity. The factors responsible for this 180-degree change have not extinguished. These include the classification of asbestos as a carcinogen, the massive and ongoing asbestos litigation that has engulfed courts and bankrupted many major materials manufacturers, and the regulatory status of asbestos among three federal agencies and other levels of government. Also a definite factor is the enduring presence of asbestos in over 3,000 construction materials that still reside in millions of buildings in the United States. Each of these factors is in flux, and the relationship between asbestos and contractors’ risk factor will continue to change.

The Current Status and Significance of These Factors
The health risks of asbestos exposure are receiving renewed attention; recent reports indicate that human mortality statistics associated with asbestos exposure are still climbing. Asbestos diseases often take 15 to 40 years to manifest themselves, so current figures relate to exposures that began a long time ago. The statistics now include a high percentage of construction workers, as predicted in the pioneering medical research on the subject. Tragically, the statistical trend line is likely to continue to climb.

With many U.S. construction materials manufacturers in bankruptcy over asbestos litigation, new litigation is in the news. As manufacturing of asbestos-containing materials has declined, the target of litigation is shifting to owners and operators of facilities with documented presence of materials with greater than 1 percent asbestos. Another prime target for experienced legal teams is contractors whose employees have had years of work histories in older buildings.

EPA and OSHA regulations that were crafted to protect workers and the general public are still in full force today. They require the assumption of asbestos presence in suspect materials in the absence of a properly performed asbestos survey. Although enforcement of the asbestos regulations is known to be spotty in many areas, regulatory agencies do investigate issues when formal complaints are levied.

The Occupational Safety and Health Administration’s asbestos regulations were revised in 1995 to contain specific provisions regarding asbestos surveys and the role and responsibilities of non-abatement contractors on renovation projects. When a jobsite is found to have asbestos exposure issues, the owner and every contractor present may be given citations.

The Environmental Protection Agency has three separate regulations with asbestos provisions that are being enforced with continuing vigor throughout the United States. Local air quality districts are often delegated authority to enforce the regulations, with the EPA getting involved when the issues are determined to be willful or serious, or both.

Asbestos-containing material, or ACM, exists today in a majority of buildings built from the 1940s through the mid 1980s. The main source of ACM in all buildings is the original ACM that was installed during this time period.

The high cost of ACM removal and limited ability to move people around within buildings has meant that most owners remove only the minimum amount absolutely necessary to resolve issues or to allow renovations to proceed. Regulations generally require complete ACM removal only before demolition of a building. Seldom is ACM removal performed during the life of a building for any other reason. ACM can be maintained in place indefinitely.
Although the presence of ACM in today’s construction supply chain is very limited, it is still imported and installed in new buildings. Many of the current sources of ACM in buildings are still legal because the asbestos product bans in the United States include only some types of construction products.

The fact that asbestos is a carcinogen increasingly being implicated in mortality statistics and health reports will keep the pressure on for regulatory enforcement and will also fuel continued litigation. The targets of the litigation will continue to change from manufacturers to facility owners and their agents (e.g., contractors). The regulatory environment, including the enforcement of very specific asbestos regulations, will continue for a long time.

Extreme Risks for Contractors
The health and regulatory risks related to asbestos exposure for untrained subcontractors – mechanical contractors, electrical contractors, cabling contractors and even interior decorators – are potentially extreme. Asbestos regulations require worker training and specific protocols before undertaking a renovation project (defined as “anything you do to change a building” when that building is multifamily, public or commercial and ACM is known or presumed to be present). The OSHA regulations follow contractors and their employees into single-family homes, where asbestos survey information is seldom present. We have witnessed untrained contractors experience extreme consequences by disturbing ACM in single family homes. Some state OSHA offices have issued letters advising contractors of their responsibilities when working in homes.

Considerable misinformation on asbestos in buildings exists in the construction industry today. However, in our experience, this misinformation and ignorance of the law has never made for a good defense.

Facility owners and non-abatement contractors can become informed about asbestos-specific approaches through seminars and short courses. The information presented should be geared to achieving a manageable compliance program. We strongly recommend non-abatement contractors use what we call “the ASK approach” to asbestos. It goes like this:

• “A”: Ask for the asbestos survey before quoting or beginning any renovation work. If one does not exist, politely let the contact know it is required by law that this survey be provided.
   
• “S”: Set a company policy for projects where ACM is present or where a survey has not been performed. It should be specific yet flexible enough for different situations. Having no policy is a clear policy decision.
   
• “K”: Know your rights and responsibilities under the laws, and train your people. Work with general contractors, regulatory authorities and building officials you know to have environmental and construction knowledge and a risk-reduction perspective to determine your best approach.

The following case summaries relate to renovation projects that became ACM incidents leading to significant issues for the contractors and owners involved. Each summary includes a project description, the nature of the incident, the activities required to resolve asbestos contamination issues, and information about the other consequences of the incident.

Case No. 1: Casino Remodel Project
Project description: This project included remodeling of an existing casino gaming area into a new sports bar. An asbestos survey was completed before the remodel project began and before removal of the asbestos-containing spray acoustic ceiling materials was performed.

Asbestos incident: General soft demolition was underway in the gaming area, with a caution tape barrier between the work area and the occupied business. The general contractor removed some interior decorative surfaces on the ceiling and found some previously concealed spray acoustic ceiling materials. The contractor decided to remove the materials with wet methods as part of the soft demolition work, assuming it may be ACM. An air-quality enforcement officer happened onto the jobsite and saw the renovation going on. The officer inspected the site, observed the ceiling issue, asked some questions, and took some samples. The spray acoustic material was determined to be ACM, and the quantities that were disturbed exceeded threshold quantities requiring agency notifications and abatement procedures under EPA asbestos regulations. The remodeling project was red-tagged (i.e., shut down) immediately after the sample results were received, with all tools, equipment, materials and other items in the remodel area mandated to be left in place. The employees were not allowed back on the site until the issues were resolved.

Activities to resolve the asbestos contamination: An abatement contractor was hired to seal the remodel area off from the rest of the casino and to decontaminate the areas that were immediately adjacent. An asbestos consultant was also hired to assess the degree of contamination at the site and develop an abatement plan.

The asbestos-abatement containment measures included sealing off the entire remodel area with poly walls (plastic sheeting) under additional black poly visual barriers, installing a decontamination chamber inside the containment near an outside door and establishing pneumatic isolation (negative pressure) of the containment with HEPA-filtered differential pressure units exhausted to the outside of the building. Asbestos-warning signage was placed on the outside of the containment, next to the existing slot machines.

Once the containment was in place, removal of the rest of the spray acoustic material was performed, and the contents of the site were decontaminated, including the contractor’s equipment and other items. The abatement project was conducted as a Class 1 OSHA asbestos abatement project, with the employees wearing disposable suits and full-face negative pressure respirators. During the abatement project, decontamination of the employees and equipment was conducted through the decontamination unit, including a portable shower with a water filter system. The ACM waste was bagged, manifested and delivered to an approved asbestos landfill.

After four days and many overtime shifts for the abatement contractor, the consultant conducted the appropriate testing and cleared the decontamination project. The red tag was lifted, and the remodeling work began again.

Other consequences: Besides having to pay for the emergency project, the contractor and the owner were both given serious citations from the local air-quality district. The contractor’s attempt to appeal the citation was unsuccessful. The citation included monetary fines and mandated the training of all employees of the contractor. The insurance policies for both the contractor and the owner specifically exclude coverage for hazardous materials operations, and therefore the costs were not recoverable.

Case No. 2: Renovation in a Hospital
Project description: The project involved the renovation of a portion of a hospital where new laboratory space was intended. The asbestos consultant informed the owner that the asbestos did not need to be removed to complete the project because the contractors did not need to disturb the fireproofing. The owner told the contractors to take appropriate precautions to protect their employees and the public. Four subcontractors were on the site when OSHA red-tagged the project due to elevated air sample results. Elevated levels of asbestos in air quality results were attributed to vibrations from plumbing renovation and the pulling of new cable into the area which disturbed ceiling tiles with settled dust containing high concentrations of asbestos. All four contractors on site were given citations by OSHA. Not cited was the owner, who had not been occupying the space at the time due to the renovation work.

Activities to resolve the asbestos contamination: A new asbestos consultant was hired, and it was determined that the remodeling work could not be accomplished without further disturbance of the asbestos so the complete area was abated per OSHA Class 1 procedures, after project specifications were prepared and an asbestos abatement bid conducted. The remodeling project resumed approximately two months later, after clearance inspection and testing verified the project was complete. The cleanup also included the HVAC system in that portion of the hospital.

Other consequences: The four contractors sued the owner for causing them to receive serious citations and potential liability from their employees. The OSHA citations were appealed and eventually dropped based on a stipulation that the contractors would obtain appropriate asbestos training including awareness training for every employee and higher level training for project supervisors. The hospital and the original consultant were given verbal warnings from OSHA and were informed that subsequent incidents would result in enforcement actions.

Conclusion
Clearly, asbestos is an issue in the renovation market today!

Renovators will regularly be encountering ACM throughout the foreseeable future. Given this fact, contractors should train themselves, their managers and their workers about the hazards and regulations surrounding asbestos, and they should use industry associations and other resources to develop practical, proactive approaches to this important issue. Don’t be afraid to “ASK.”

By James V. Grimaldi and Jacqueline Trescott
Washington Post Staff Writers
Thursday, December 10, 2009

An outside consultant urged improvements in the Smithsonian Institution's handling of asbestos in its buildings, calling for changes in procedures and training, and inspections to locate the toxic substance throughout the sprawling museum complex.

Smithsonian Secretary G. Wayne Clough ordered the study this year after The Washington Post reported in March that a former exhibit specialist who worked on walls containing asbestos had been sickened during his 28-year career at the National Air and Space Museum.

The worker, Richard Pullman, 54, has settled a lawsuit with the institution for $233,000, according to records obtained by The Post this month from the Department of Labor under the Freedom of Information Act.

Pullman said he frequently sawed and drilled into interior walls to install and update exhibits for more than 25 years. In 2008, he and other workers were told for the first time that the walls contained asbestos, Pullman said. Asbestosis, a lung disease linked to breathing asbestos fibers, was diagnosed in Pullman by his physicians.

Smithsonian spokeswoman Linda St. Thomas said, "There's no admission of guilt" in the settlement.

Clough, a civil engineer by training, noted in an e-mail to employees this week that the report, by engineering consultant URS, calls for "a number of improvements." He emphasized the report's positive findings.

"Our written policies and procedures are typical of a federal agency and our efforts exceed those of most commercial entities, according to the report," he said in the e-mail, which the Smithsonian provided to The Post.

Clough is scheduled to testify at an oversight hearing Thursday before the House Appropriations Committee panel that monitors the Smithsonian. St. Thomas said there were no plans to bring up the report in his testimony.

"The recommendations like improving records maintenance and communication in no way indicates that the Smithsonian is unsafe for its employees," St. Thomas said.

Pullman's settlement was signed in July by Air and Space Museum Director John R. Dailey, but it was filed under seal at the Labor Department's administrative court.

The engineer's report, which the Smithsonian gave to The Post, said that the institution failed to use the most reliable method of asbestos testing, which would "afford greater protection for employees, contractors, and the public."

While the Smithsonian had conducted baseline studies to locate asbestos in facilities years ago, the institution had failed to reinspect buildings every three years, a commonly accepted "best management practice," the report said.

The Smithsonian also failed to keep a complete record on asbestos-containing material. Workers often did not have adequate information on the location of asbestos or how to work around it, according to the report.

The consultants suggested improved training, better tracking of employees who should wear respirators and the posting of clear signs around areas containing asbestos. "Employee training appears to be one of the areas in most need of improvement," the report concluded.

Smithsonian spokeswoman Samia Brennan said more than 800 workers have attended asbestos classes in 2009 and about 50 workers have taken the offer to see an asbestos-disease physician contracted by the institution.

Under the terms of his settlement, Pullman received $154,000 in August and will receive $79,000 in severance pay. The Smithsonian also agreed to pay 65 percent of his health insurance for nine months. The terms prohibit Pullman and the Smithsonian from disparaging each other.

Pullman won an appeal over the summer on his worker's compensation coverage claim for asbestosis. The claim was initially denied a year ago. The decision means he can be reimbursed for asbestosis-related treatment and can get benefits if he becomes disabled or dies from the disease, said his attorney, David J. Marshall.

Pullman contacted The Post in 2008 after learning that joint compound in the Air and Space Museum's walls contained asbestos. He also began to file a series of occupational-safety complaints. Pullman, who had an otherwise positive employment record, was disciplined after filing the workplace safety complaints. Those sanctions were deleted from his personnel file as part of the settlement.

His case prompted hearings in Congress and an internal review. It also prompted contract steamfitters who had worked at the National Museum of American History to contact The Post to allege that asbestos was mishandled during that building's $85 million renovation.

The Smithsonian said the problems were corrected.

Marshall said his client was pleased with the settlement. "Mr. Pullman feels that he has done his part in the fight for a safer workplace and for the right of workers to advocate the same without fear of retaliation," Marshall said.

The Post reported earlier this year that in 1992, a consulting firm hired by the Smithsonian, Versar, found 1 to 5 percent asbestos in the joint compound used in two dozen Air and Space museum rooms. A level above 1 percent is supposed to trigger worker-safety requirements. The report said the material would be harmless if undisturbed. The report urged that workers be alerted, but the Smithsonian has acknowledged that warnings rarely were issued.

Thousands of pages of other documents, which fall under the Smithsonian's public-records policy and were released to The Post over the summer, confirm another of Pullman's complaints: Construction and plan specifications did not always notify outside contractors that asbestos in the wallboard joint compound triggered the safety precautions.

Among those specifications were the 2007 plans to replace the electrical system. The plans state incorrectly that the amount of asbestos in the joint compound "would constitute less than one percent."

The Smithsonian acknowledged that warnings about asbestos in the walls were not passed down over the years, but said there was no evidence that asbestos was released in the building.

Pullman had alleged that the workers during those two projects had drilled numerous holes throughout the building without using methods to prevent asbestos from floating through the museum. He said debris was allowed to blow throughout the museum. He secretly collected and tested dust samples, some of which showed high concentrations of asbestos dust.

The Smithsonian dismissed the results of Pullman's tests and conducted new air tests that found no problems.