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New Turn for Asbestos Reporting Under TSCA

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asbestos photo

A court ruling in the final days of 2020 for asbestos reporting under the Toxic Substance Control Act (TSCA) may finally steer the EPA’s review of asbestos back in the right direction.

How the incoming Biden Administration responds to these developments will impact whether asbestos is finally labeled a toxin under TSCA and the extent of new asbestos reporting requirements for continued industry use of asbestos.

Background

A 2016 bipartisan amendment to TSCA created an agency review standard that seemed likely to result in asbestos finally being identified by the EPA as a toxin.  However, the EPA under the Trump Administration created a very narrow analysis based on too little information.  Legal challenges to that approach, coupled with the COVID-19 pandemic, slowed the final scope and status of the EPA’s asbestos risk analysis. Though the EPA released the first part of its risk evaluation on December 30, 2020, a federal district court decision handed down on December 22, 2020 could force the EPA to drastically change its assessment.    

Court ruling involving asbestos reporting

The federal district court ruling involved two cases – one brought by the Asbestos Disease Awareness Organization (ADAO) and a second filed by several states attorney generals.  Judge Edward Chen, in his 36-page ruling, found that the asbestos-containing products identified by the agency during the rule making process “appear to be only the tip of the iceberg.” Chen also held that gaps in the agency’s information create risk evaluation models which don’t have the ability to “make accurate assessments that capture all ‘reasonably available’ data.”

The Court ordered the EPA to make significant changes to its TSCA Chemical Data Reporting (CDR) Rule to close several loopholes. These include considering more in-depth information about potential uses of asbestos for its risk evaluation.  Judge Chen’s order also addressed closing two additional loopholes:  ending the reporting exemption for products with “impurities” (like asbestos contaminated talc products) and requiring current processors of asbestos products to report those uses. 

What happens next?

Assuming the Biden Administration chooses not to appeal Judge Chen’s order,  the district court’s opinion will require EPA to amend its TSCA Chemical Data Reporting (CDR) Rule to require additional asbestos reporting from companies using asbestos and raw material that may be contaminated with asbestos – such as talc-based cosmetics. The data gathered through additional reporting may require the EPA to revise its conclusions or conduct yet another evaluation.  

This will impact not only the EPA’s Part 1 – risk evaluation of current asbestos uses, but Part 2 as well – risk evaluation for legacy uses of asbestos. Safer consumer products and cosmetics could also be the upshot of more stringent asbestos reporting requirements.

Asbestos Stopped the Clock

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Asbestos in LSU clock tower
LSU Clock Tower

After almost a hundred years of service, the Louisiana State University (LSU) Memorial Tower in Baton Rouge was ready for restoration, but asbestos stopped the clock tower project when the potentially deadly mineral was found in the interior.

History

The tower was built in the early 1920s in memory of 1,447 Louisiana soldiers who died in World War I. The interior of the tower houses a military museum.

The Memorial Tower clock holds a special place in the heart of students and the community for its chimes. The bells ring every quarter hour until 10 pm and at noon they ring the tune of the university’s alma mater song. On Valentine’s Day, tradition states that receiving a kiss under the tower at the ringing of the chimes at midnight – the only night they ring past 10 pm – confirms a student is now an “official” LSU student.

The 175’ tall building was designed in the Italian Renaissance style and is a landmark in the city.

From its history, it is evident the tower is an important part of Louisiana’s past – from its construction in 1923, to today, and into the future. The restoration will ensure the building and its traditions carry on for future generations of students.

The restoration

Finding asbestos was not completely unexpected, as many buildings in the United States were built using the mineral from the 1920s until the late 1970s. Until renovations began, the asbestos was undisturbed and therefore not a danger. But once substances containing asbestos are handled, fibers can become airborne and inhaled by workers or others who are in the affected area.

When found in the tower, work on the interior was stopped and tests are currently underway. Most other buildings on the LSU campus were also constructed during this time period, meaning that as they are restored, they may also need testing and possibly abatement.

Because the asbestos was discovered at the beginning of the restoration, the university states there is no threat to students or faculty members. As a precaution, remodeling or renovations performed on any commercial buildings, schools, or residences during the time period asbestos was commonly used in construction, may require testing on possible asbestos-laden products before initiating a project.

Exposure to asbestos is a known cause of cancers, such as lung cancer and mesothelioma. At this time, mesothelioma remains a fatal disease. Mesothelioma can go undetected for decades – even 50 years – which makes it a silent killer. Early detection is critical.

Asbestos stopped the clock, but it will chime again

Exterior renovations continue and the entire $6.8 million project should be completed by the 2020 Fall semester. Baton Rouge, especially LSU students and alumni, look forward to enjoying their celebrated clock tower once again.

Photo by: Kkmurray – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=2666826

 

Concerns Over Asbestos Abatement Continue at Lafayette Academy

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We recently posted a blog about substandard asbestos abatement work at the Lafayette Academy Charter School and, at a meeting with school officials and representatives from the Recovery School District (RSD) and the Louisiana Department of Environmental Quality (LDEQ) on July 27th, it was evident that parents’ concerns over asbestos abatement continue due to the possible exposure to their children.

The first abatement was conducted from March through the summer of 2017. The LDEQ inspected the work and found many faults, including children walking the halls around the work area and “sticking their heads in” to see what was happening behind the improperly installed plastic sheeting. This work was supposed to be started in May after school was dismissed for the summer.

The second abatement began in May of this year. Again, LDEQ inspectors found issues with the removal process, including workers walking about the campus wearing the clothes and shoes they wore in contamination areas, thus spreading fibers wherever they walked. The plastic sheeting material was found with holes allowing asbestos to spread.

Concerns over asbestos abatement continue

The Choice Foundation, overseer of the academy, was informed on July 16th by the RSD that the abatement did not follow protocol once again. At that time, the school was closed until it is proven safe for students and faculty.

Meanwhile, school officials, as well as representatives from LDEQ and RSD, continue to claim there was no risk to children during the abatements of 2017 or 2018. They stress air quality tests were far below any dangerous levels.

Next steps

The current abatement should be completed by mid-August, but students will not return until all buildings, contents, and grounds are declared safe which means they will be located at alternate locations throughout much or all of this coming school year.

Students from pre-K – 4th are expected to attend Paul Dunbar school this coming year.

The 5th – 8th grades are targeted to attend the historic McDonogh 35 building on Kerlerec Street. Parents see this as a possible extension of the problem as the McDonogh building is much older that the original uptown Lafayette Academy building and it also contains asbestos. This building is now also undergoing renovation and abatement to prepare for the new students. Though all areas are monitored each day for any sign of mishandling of asbestos-containing materials, confidence is low among parents. Construction on this building should be complete by August 13.

Parents were told the probability classes would resume in alternate locations by August 27 was “extremely high.”

Mishandled Asbestos Removal Temporarily Closed Uptown Lafayette Academy Campus

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Asbestos abatement is always a job for professionals, but in this case mishandled asbestos removal temporarily closed the Lafayette Academy’s Uptown New Orleans location.

There is much finger-pointing in this situation which began in 2017 when the Recovery School District (RSD), run by the state, began renovations of the school as part of the School Facilities Master Plan for Orleans Parish.

The 2017 mishandled asbestos removal

The Lafayette School asbestos removal and renovations began in 2017 with the building’s third floor. While abatement was to begin in May 2017 after students were dismissed for the summer, it has come to light that it began as early as March 2017 while students were in the building – some students even in the asbestos containment areas. Though the RSD claimed, “all environmental laws and regulations regarding hazardous materials were followed,” an inspector wrote in a state report that containment areas were unsecured, students walked the halls in the area, and at least one student peaked into the containment area. The inspector also found the project supervisor falsified his asbestos removal certification and there were boot prints in and out of containment areas which showed workers could easily track asbestos into the halls. The inspector also found an empty classroom was used to store improperly labeled and wrapped asbestos.

In spite of this, the RSD when notified didn’t stop the abatement activities or evacuate the building. However, some scheduling changes were made, such as limiting work hours so that removal was only after school dismissal. The RSD cited air quality tests that showed the air was safe on the day of the 2017 inspection and that their actions were approved by the Louisiana Department of Environmental Quality (LDEQ).

The charter school is run by the Choice Foundation. The CEO of the charter school said there was no notification to him or his staff about the specific issues cited in the report, though he did know some changes had been made. Parents, however, say they should have been informed. One concerned parent said, “For you to get on the news and say that the children were not in school while construction was taking place – that’s a total lie!” As recently as July 13, 2018, RSD chief facilities officer, Ronald Bordelon, stated that the 2017 asbestos removal was “properly completed” before the students returned in August of 2017.

The 2018 mishandled asbestos removal

Asbestos removal resumed in May of 2018 on the first and second floors of the Lafayette School campus on Carrollton Avenue. An LDEQ inspector noted on June 14, 2018 that asbestos was found on the flooring and insulation of the second floor and that holes were in the plastic material that stops asbestos fibers from releasing into other areas during removal, that workers walked in and out of the containment area without changing clothing – even walking around the campus and eating lunch with no clothes change. It is known that asbestos fibers can attach to clothing and be spread to other people, or furniture, which exposes others to inhalation of the deadly fibers.

On July 16th the Choice Foundation was informed by RSD that the contractor failed to follow protocol for asbestos removal. Because the building and its contents may be contaminated, the school is closed until it can be completely cleaned and safe for occupancy. The Orleans Parish School Board was unaware of the 2017 LDEQ report until July 23, 2018. The school board stated, “The Recovery School District was, and still is, responsible for the management and oversight of the building’s renovation. The school board was not involved in the renovation process and therefore was not aware of the LDEQ’s report.”

The contractors

The abatement company was Advanced Environmental Consulting (AEC) out of Baton Rouge. They were hired by the general contractor, Law Industries, also from Baton Rouge. Last week, Law dismissed AEC and the RSD dismissed Law.

The students

This year, the students will be split between several locations until their school is once again a healthy environment. Some will be relocated to the McDonogh building on Kerlerec Street, some to the Paul Dunbar building. The Choice Foundation will make determinations on the locations for the various age groups.

New Orleans Workers at the W.R. Grace Vermiculite Exfoliation Plant Were Exposed to Asbestos

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New Orleans workers at the W.R. Grace vermiculite exfoliation plant were exposed to asbestos from 1965 to 1989. The facility is located in Jefferson Parish on River Road. During this time, the plant received 148,000 tons of asbestos-contaminated vermiculite from the Libby, Montana mine, also owned by W.R. Grace.

Libby, Montana

The vermiculite mine in Libby operated from the early 1920s until 1990, producing over 70% of vermiculite sold in the U.S. Though vermiculite is a naturally occurring mineral – in appearance, much like mica with multiple shiny layers – it was contaminated with asbestos in the Libby mine. W.R. Grace both mined and processed the ore and then shipped to locations all over the United States, including Louisiana.

The dangers of asbestos contaminated vermiculite

Inhalation is the primary means of exposure to asbestos. As tons of vermiculite were shipped to a location, processed, and shipped out to other locations, the ore released asbestos fibers into the air. These could also be released during the mining, milling, and exfoliation operations. Though workers were the most susceptible to exposure, people in nearby offices and residences could also be exposure, as well as their family members. In the case of W.R. Grace in New Orleans, there is a residential area a few hundred feet northeast of the site.

A report from the U.S. Department of Health and Human Services states, “Some studies suggest that populations who live near asbestos mines and mills have experienced excess asbestos-related diseases, specifically mesothelioma.”

Workers at the W.R. Grace vermiculite exfoliation plant were exposed to asbestos

The W.R. Grace plant was an exfoliation facility. That process required vermiculite to be heated to high temperatures. The water contained in the mineral converted to steam and then separated the mineral into its layers, expanding the vermiculite into small worm-shaped pieces. By doing this, its bulk volume was expanded, or “popped,” and the mineral became a commercially valuable product – primarily for attic insulation, concrete aggregate, masonry insulation, horticultural soil conditioner, and a spray-applied fireproofing. But, in this process, asbestos was released and made available for human exposure.

There was a population of 5,047 within one mile of the facility in 1989, the time production ceased. Jefferson Parish still ranks 19th among all U.S. counties in deaths from mesothelioma.

W.R. Grace reported that at the time operations ceased, a remediation was conducted at the site including vacuum and water rinse of equipment, walls, and floors, and removal of equipment.

What to do if you think you were exposed

Diseases from asbestos exposure, such as mesothelioma, can take up to 50 years before symptoms appear. It has only been 30 years since Libby vermiculite processing ceased. If you think you were exposed, the first precaution would be to stop smoking as that can aggravate any potential lung disease. It would also be prudent to let your doctor know the timeframe and degree of exposure you experienced and have regular checkups.

Exposure from working with a product containing asbestos, such as Libby vermiculite, dramatically increases the risk of disease. The sad truth is that those exposed to vermiculite had no idea they were inhaling fibers that would potentially shorten their lives.