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Petition Filed by 15 Attorney Generals for EPA to Enhance Asbestos Reporting Rules

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Attorney Generals in 14 states, plus the District of Colombia, have petitioned the EPA to enhance asbestos reporting rules. This would “address deficiencies” observed in the current chemical data reporting (CDR) asbestos rule. The petition asserts that the Environmental Protection Agency (EPA) has a mandate to perform asbestos risk evaluations and create regulations that deal with all unreasonable human or environmental risks.

Specific ways for the EPA to enhance asbestos reporting rules

• Close exemptions that exist in the CDR for naturally occurring substances and impurities.
• Extend the reporting requirements to processors of asbestos.
• Require notification of the substance’s use in articles.

Basically, this petition and an earlier one presented to the EPA in September of 2018, request all importers of asbestos and asbestos-containing products to inform the EPA of how and where they will be used. A current example of the need for these rules is a loophole that allowed Occidental Chemical Corporation–the largest asbestos importer– to import asbestos into the United States without notifying the EPA.

Supporters of the 2018 petition included the Asbestos Disease Awareness Organization (ADAO), the American Public Health Association (APHA), Center for Environmental Health (CEH), Environmental Working Group (EWG), Environmental Health Strategies Center (EHSC), and Safer Chemicals, Healthy Families (SCHF). This petition was denied.

The dangers of asbestos

While asbestos is naturally occurring, that does not mean it is not a danger. It is a known carcinogen. Researchers believe approximately 40,000 Americans die annually from asbestos-related diseases. Diseases range from asbestosis, to lung cancer, and most deadly – mesothelioma. While many countries have banned its use, the US has not, though there are limitations.

2016 changes to the Toxic Substances Control Act

Loopholes were a concern when the EPA made changes to the Toxic Substances Control Act at the beginning of the Trump administration. In general, instead of all new uses coming before the EPA to assess risk, only 15 specific uses would bring about a federal assessment. These 15 uses are relatively common, so new uses could slip in without review.

Attorney General Maura Healey of Massachusetts asserted, “In recent years, tens of thousands have died from mesothelioma and other diseases caused by exposure to asbestos and other dangerous chemicals. If the Trump administration’s erosion of federal chemical safety rules continues, it will endanger our communities and the health of all Americans.”

EPA response

The EPA’s response, led by EPA’s acting administrator, Andrew Wheeler, said their plan would make it more difficult to use asbestos in products. The agency asserted that it “is aware of all ongoing uses of asbestos and already has the information that EPA would receive if EPA were to amend the CDR requirements.” Because the risk evaluations under the reformed TSCA must be completed by December, there was not time to change the rule and assemble the information in time – although there is a possible six-month extension.

Attorney generals’ response

The attorneys assert that the public has a right to know of dangers to their health and how to avoid and eliminate exposures. “Neither of these goals can be accomplished,” the attorneys said,” if EPA does not possess the necessary comprehensive data with respect to the manufacture (including import) and use of asbestos in the US on which to act – data that currently EPA is not collecting under the CDR, as EPA concedes” in its response and denial to the previous petitioners.

Going forward

The ADAO President and CEO, Linda Reinstein, expressed the thoughts of many when she said, “We are grateful and pleased that the states are showing leadership in holding the Trump EPA accountable for its reckless disregard of public health. When they denied ADAO’s petition, EPA irresponsibly refused to collect information that its own scientists need to do their jobs properly and that workers and the public need so they know whether they are being exposed to asbestos and can protect themselves from harm.”

The EPA response to this latest petition, filed on January 31, is required within 90 days.

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.