The actions of the Obama Administration EPA, now responsible for rooting out the problem, show how difficult breaking bad habits can be.

Last December 15, facing the imminent filing of a Freedom of Information Act (FOIA) lawsuit by environmental health advocates, the EPA released long-withheld documents showing that the agency’s own tests confirmed that “wet method” asbestos abatement is unsafe and should not be allowed. Yet, the documents also show that the agency has failed to notify workers who conducted the tests of their dangerous exposures and is allowing continued “wet method” use by other federal agencies – including the Department of Energy (DOE).

In particular, DOE has plans to use the method – also known as the Alternative Asbestos Control Method (AACM) – in the demolition of an asbestos-laden gas diffusion structure at its Paducah, Kentucky, facility where LIUNA members are employed.

Widespread Problem

For decades, a deny-and-cover-up culture has surrounded asbestos. Until roughly 1990 in the U.S., asbestos was mined (it is still mined in Canada) and processed for thousands of industrial and commercial purposes because, suppressing and ignoring its health costs, it was an inexpensive insulation and fire retardant. Yet, asbestos dangers were well-known to asbestos mining companies and product manufacturers as far back as the 1930s when Johns Manville scientists first reported its hazards to their employers. Today, asbestos is a known carcinogen, and medical science has determined that no level of exposure is safe. When its microscopic particles are released into the air – nowadays, mostly through renovation or demolition – and inhaled, they lodge in the lungs and begin a steady destruction that can result, 30 to 40 years later, in asbestosis, lung cancer or mesothelioma. There is no cure, and death is often slow and painful.

The Clean Air Act charges the EPA with regulating the demolition of asbestos-containing structures under the National Emissions Standards for Hazardous Air Pollutants (NESHAP). The NESHAP is clear and specific in saying that owners or operators of demolition activities must “[r]emove all RACM [regulated asbestos-containing materials] from a facility being demolished or renovated before any activity begins that would break up, dislodge, or similarly disturb the material or preclude access to the material for subsequent removal” (40 C.F.R. § 61.145 (c)(1)).

Of course, it would be far cheaper to simply tear down the structure, but the asbestos-laden dust would imperil the future health of onsite demolition workers as well as any members of the public who are downwind to inhale it. Unfortunately, due to abandonment and tax delinquency, many local governments have become owners of dilapidated, asbestos-filled structures. They would like to sell or redevelop the properties, but no buyers or developers are willing to assume the high cost of asbestos abatement. These high costs are also a problem for state and federal officials who need to renovate old facilities, such as those at DOE’s Paducah plant.

Circumventing Regulations

During the Bush era, high-level appointees at EPA tried to get around regulatory obstacles by quietly authorizing demolitions that stretched and distorted NESHAP’s emergency exception for buildings deemed “structurally unsound and in danger of imminent collapse.” In such situations, the regulations allow demolition operators to spray the structure with water to reduce dust, then tear it down. In 2003 and 2004, however, the EPA authorized officials in Dallas and St. Louis to tear down asbestos-laden buildings that were in disuse but not in danger of collapse. When local activists and the media uncovered the plans, the agency was forced to reverse course (although some buildings in St. Louis had already been destroyed).

Internal EPA documents eventually showed that top officials had over-ruled agency scientists who had opposed the exemptions. In withdrawing its plans and, perhaps, to save face, the EPA announced that it would conduct “wet method” experiments at Fort Chaffee in Arkansas to determine the method’s efficacy. Those experiments were conducted in 2007 (including one in Ft. Worth, Texas), and the agency solicited public comment and an external peer review of its draft test reports in 2008.

In 2010, Public Justice and the Natural Resources Defense Council (NRDC) – which, along with community and union activists, including LIUNA, had exposed and opposed the original Dallas and St. Louis exemptions – asked Obama Administration EPA chief Lisa Jackson to disclose documents underlying the two 2008 draft reports and to discontinue testing of AACM. The request noted several troubling aspects of the tests, including sampling that showed significant release of asbestos, the discharge of asbestos-containing wastewater into the public sewer system and photographs of demolition workers wearing no personal protective equipment. In June 2010, the two organizations followed up with a FOIA request and, then, when the agency did not respond, filed a complaint in U.S. District Court in Manhattan in April 2011. In September, the agency released many documents but withheld many others. The released documents heightened concern that the tests had been improperly managed. Meanwhile, in July, based on an internal review, the EPA decided to suspend further investigation of “wet method” abatement but withheld its internal review documents until forced to do so by its imminent date with the federal court.

Under pressure after the final document disclosures, the EPA’s Office of the Inspector General investigated the agency’s continuing authorization of “wet method” abatements, releasing its report on December 14 of last year. Inspector General Arthur A. Elkins, Jr., cited several situations in which unapproved methods are in current use or contemplated, including the Hanford Superfund Site near Richland, Washington, and the plant in Paducah. “The use of unapproved methods is counter to EPA regulations,” he wrote. “The current and proposed use of unapproved methods may jeopardize the health and safety of the public.” He added, “EPA should notify [its field] offices that unapproved methods are not to be used without obtaining appropriate waivers.”

Perhaps hesitant due to the strong anti-regulatory political climate that has been stirred up by big business lobbyists, the EPA has yet to announce action on the Inspector General’s report. However, the nation’s asbestos abatement rules are well-founded and clearly articulated, and, despite their cost, they need to be followed without exception. The ball is now in the EPA’s court where the agency can finally bring this aspect of the nation’s dreadful asbestos legacy to an end.

[Steve Clark]