Consumer Reports Slams Ionizing Air Cleaners

ASCR Seeks New Director to Execute Strategic Plan

Texas Eyes Adjustments to Mold Licensing Program

Today’s Existing Asbestos Concerns Contractors

Word on the Street 

EPA LISTS IEQ RESEARCH NEEDS
The U.S. Environmental Protection Agency in March published a document titled “Program Needs for Indoor Environments Research,” identifying topics that ought to be addressed in research by the EPA and other government agencies. Research needs are divided into six broad categories: 1.) Pollutants, Sources and Health Effects; 2.) Human Performance; 3.) IAQ Measures and Indices; 4.) Building Design and Operation; 5.) Homeland Security; and 6.) Product and Technology Verification. From there, the document is divided into many more specific areas of research. The document can be accessed online at www.epa.gov/iaq/pubs/pnier.pdf.

One of the innovative topics it addresses is the development of a building IAQ index. Making IAQ quantifiable allows for the possibility of “integrat[ing] IAQ into normal market transactions for buildings, rental space, liability insurance, health insurance and finance,” the document states. “Once institutionalized in these markets, good IAQ practices could become important in the marketplace. Initially, the program office would promote the adoption of building IAQ indices by appropriate national and international standard setting organizations, and then help institutionalize these indices through cooperative programs with public and private institutions.”

The EPA’s John Girman spoke about the document at the quarterly meeting of the Federal Interagency Committee on Indoor Air Quality held April 28 in Washington, D.C. During his presentation, he listed seven high-priority research topics the EPA’s Indoor Environments Division has abstracted from the document: 1.) Green Buildings – Products and Chemicals; 2.) Baseline Characterizations of Indoor Environments; 3.) Air Toxics Research; 4.) Mold Research; 5.) Evaluate Efficacy of Exposure Reduction Measures for Allergens and Irritants; 6.) Research on Effects of Early Life Exposures on Immune System Development; and 7.) Research on IAQ Benefits for Human Performance and Productivity. The Indoor Environments Division also listed four other topics in the document it wishes to emphasize as next-highest priorities: 1.) Particulate Matter; 2.) Ventilation for Good IAQ and Moisture Management; 3.) Homeland Security; and 4.) Product and Technology Verification.

ASTHMA AWARENESS MONTH
Also at the CIAQ meeting, the EPA announced that during May’s Asthma Awareness Month, the Ad Council will distribute a new wave of public service announcements about childhood asthma, produced by the EPA’s Indoor Environments Division. “The campaign uses the icon of a goldfish to remind parents that no child suffering with asthma ‘should feel like a fish out of water,’” the agency announced at the meeting. “This year the campaign evolves by presenting triggers that might surprise parents as to the causes of children’s asthma attacks.” The new ads are the third wave of a campaign that began in March 2001 and has been a success in many ways. The EPA said the campaign has won a Crain award, “received about $145 million in media donations,” and “spurred one million Americans to seek environmental information about presenting asthma attacks.”

VOLUNTEERS WANTED
The American Industrial Hygiene Association is making improvements to its technical committees. One change, removing the 30-person cap on the number of regular members of a committee, will “provide a structure that does not limit participation,” Mili Mavely of AIHA headquarters explained last month in an e-mail. Another change, instituting so-called “project teams,” “encourages participation at different levels,” she said. One’s appointment to a project team will now automatically provide that person with a regular committee membership status, which provides certification maintenance points for certified industrial hygienists.

The first project team announced by AIHA involves the Indoor Environmental Quality Committee. “This team will work to develop the IAQ Symposium slated for AIHce 2006 in Chicago,” Mavely said. The committee wants volunteers who are attending the Indoor Air Conference to be held Sept. 4–9 in Beijing, China, to identify speakers who should be considered for the AIHA IAQ Symposium. Those interested in becoming project team members should contact Mili Mavely either by phone at (703) 846-0794 or by e-mail at mmavely@aiha.org.

HUD REPORTS ON MOLD PREVENTION
The Department of Housing and Urban Development on April 1 issued a report to Congress delivering the latest activity updates related to residential mold and moisture problems. From a section of the report’s Executive Summary: “Results to date from the overall body of HUD work on mold and moisture point to a variety of lessons learned. Among other things, they establish that multi-hazard intervention in high-risk housing is feasible and effective, and provide evidence that intervention can reduce certain symptoms in asthmatic children. They show the feasibility of new rapid, non-destructive methods of detecting mold and moisture. They highlight the key elements in building design and construction that minimize the likelihood of mold and moisture problems. They further show the strengths and viability of taking advantage of the skills and energy of state and local health departments, and underscore the lack of reliable information about the extent of different types of mold and moisture problems in the national housing stock. Finally, they make clear the need to tailor mold and moisture guidance by type of building, geographic location and occupant group.”

HARVARD CARPET CONTROVERSY
In September 2002, IE Connections covered a decision by the Board of Health of the Massachusetts town of Harvard to ban the installation, replacement and repair of carpets within its public buildings. The town is still dealing with carpet woes in its schools. In an article last month in the local Hillside newspaper, reporter Nathan Lamb writes that the board has issued an order for the carpet in the kindergarten wing of Harvard Elementary School to be removed by July 11. The order is the board's response to five years of mold complaints in that wing of the school.

Consumer Reports Slams Ionizing Air Cleaners
By Steve Sauer

A magazine article reporting on unsatisfactory performance of several brands and models of ionizing air cleaners put at least one manufacturer on the defensive. The May issue of Consumer Reports – which panned air cleaners by Brookstone, Ionic Pro, IonizAir and Surround Air – also renewed the magazine’s past criticism of the Ionic Breeze, the bestselling line of products offered by Sharper Image.

As word of Consumer Reports’ ratings caused waves in the media, the value of Sharper Image stock (NASDAQ: SHRP) immediately plummeted. The corporation also responded with a strongly worded refutation of the Consumer Reports article, complete with personalized quotes from founder and CEO Richard Thalheimer assuring consumers “that the Silent Air Purifiers are safe and effective for their homes.”

This declaration directly contrasted the results of testing by Consumers Union, publisher of Consumer Reports, which categorized five models of air cleaners as “Not Recommended” because they perform poorly and emit relatively high levels of ozone. The five models are: Ionic Pro CL-369, IonizAir P4620, Surround Air XJ-2000, Brookstone Pure-Ion V2, and Sharper Image Professional Series Ionic Breeze Quadra S1737 SNX.

Consumers Union tested the units not only for their ozone release but also “for their ability to remove dust, cigarette smoke, and pollen from the air.” The five models not recommended were all found to have poor performance in removing the three types of indoor contaminants.

Two other models, the Friedrich C-90A and Whirlpool 45030, were labeled “fine performers with negligible ozone.” These two were also rated very good or excellent in their ability to remove dust, smoke and pollen from the indoor air. Consumer Reports lists the Whirlpool model as having the lowest ozone release of those tested: only one part per billion at a three-foot distance in an open-lab test.

“The Ionic Breeze air cleaners meet the strictest standard, the 50 parts-per-billion concentration established for indoor medical devices,” Thalheimer said in the Sharper Image news release issued April 5, the same day Consumer Reports’ May issue hit newsstands.

The 50-ppb limit is derived from the voluntary standard from Underwriters Laboratory relating to electrostatic air cleaners, UL 867.

The U.S. Environmental Protection Agency, in a document stating the agency’s position on “ozone generators that are sold as air cleaners,” lists harmful health consequences caused by high concentrations of ozone. “When inhaled, ozone can damage the lungs,” the document states. “Relatively low amounts can cause chest pain, coughing, shortness of breath, and, throat irritation. Ozone may also worsen chronic respiratory diseases such as asthma and compromise the ability of the body to fight respiratory infections.”

While Thalheimer’s April 5 statement does not enumerate the Ionic Breeze’s calculable ozone release, the company says the product line releases “small, trace amounts of ozone – sufficient to eliminate many common household odors but insufficient to cause any concern.” It also says the products “meet all government standards for safety, including ozone release.”

The Consumer Reports article had highlighted the fact that there are no government standards for ozone release, describing the situation as “a regulatory black hole.”
“No federal agency sets indoor ozone limits for homes,” said a press release from the magazine’s publisher. “Air cleaners need not meet ozone limits – neither for the Environmental Protection Agency nor for the Food and Drug Administration, since it does not consider them medical devices.”

Even the 50-ppb industry standard has been questioned, and a federal government evaluation of that standard is expected to be submitted to the Consumer Product Safety Commission next month, recommending an exposure limit for ozone from air cleaners that does not present an unreasonable risk of lung injury to consumers.

Contracted to head the government research is Dr. Richard J. Shaughnessy, manager of the Indoor Air Program at the University of Tulsa and a member of IE Connections’ Editorial Advisory Board. Shaughnessy was scheduled to be the keynote speaker of the annual technical conference presented by the National Air Filtration Association last month. His appearance, although canceled at the last minute due to an illness, was set to dismiss the claims of many air cleaners as hype.

In Shaughnessy’s review of scientific literature to determine the potential health effects to consumers from exposure to ozone resulting from the use of ozone-generating air cleaners, he is sure to reference some of his own past work. He is listed as a co-author of 1991 and 1994 studies referenced in the EPA document, “Ozone Generators that are Sold as Air Cleaners: An Assessment of Effectiveness and Health Consequences.”

“The current exposure limit of 50 ppb [equivalent to 0.05 parts per million] was established by [the Food and Drug Administration], and it is used as a ‘de facto’ standard for the producers of ozone-generating air cleaners,” the CSPC said in a description of Shaughnessy’s project. “It is uncertain whether the 50 ppb is a reasonable limit given the significant amount of data that has become available since the establishment of this ‘standard.’”

While Consumers Union did measure the products’ ozone levels using the industry standard’s sealed-room test, the organization went one step further. “Because people don’t live in sealed plastic rooms, Consumer Reports also tested these ionizing air cleaners in an open well-ventilated lab,” a press release explained.

Jim Guest, president of Consumers Union, made air cleaners the subject of his column in the issue. “Our engineers went beyond the industry-standard, plastic-enclosed space,” he writes. “Ozone behaves differently depending on a room’s furnishings, so they repeated the tests in a real home and an open lab.”

The test measured ozone levels at two distances from the operating unit: two inches away and three feet away. None of the units tested exceeded 50 ppb at three feet away; the highest ozone release was the IonizAir P4620 at 28 ppb. However, two of the six exceeded that standard at two inches away. The Surround Air XJ-2000 was found to emit ozone at 319 ppb, while the measurement of the IonizAir P4620 was 168 ppb.

The next highest, Sharper Image’s Ionic Breeze Professional Series Quadra S1737 SNX, yielded results of 48 ppb at two inches and 18 ppb at three feet.

The three-foot measurement was reasonable, Consumer Reports argued, based on a picture in IonizAir’s advertising that depicts a woman sleeping on her bed in close proximity to an air-cleaning product.

As described by Consumer Reports, air cleaners are considered ionizing air cleaners if they “impart an electrical charge to the air, creating charged molecules known as ions, which are supposed to cling to airborne particles. Ionizing models that are also electrostatic precipitators, such as the kind we focused on for this report, add an oppositely charged collection plate designed to attract the particles. Ozone is produced as a byproduct when high voltage near the charging wires converts oxygen to ozone, which then exits the machine and flows into room air.”

“Some people mistake ozone’s sweet smell for a sign of cleaner air,” the magazine said.
Consumer Reports rated air cleaners in its February 2002 and October 2003 issues. Rated the poorest in February 2002 was Sharper Image’s Ionic Breeze Quadra Silent Air Purifier S1637, and the magazine said its tests “found almost no measurable reduction in airborne particles.” The October 2003 issue renewed its statements, and Sharper Image Corporation responded with a lawsuit alleging that Consumers Union “acted with a reckless disregard for whether its statements in its reports were true or false.”

That suit was dismissed Nov. 9, 2004, and Sharper Image Corporation was ordered to reimburse Consumers Union for legal fees and other defense expenses.

“While the judge ruled in favor of Consumers Union’s First Amendment right of free speech, nonetheless we continue to emphatically disagree with Consumers Union’s methods in evaluating the Ionic Breeze, both in testing and in reporting,” said Thalheimer in his April 5 statement on behalf of Sharper Image.

“I am at a loss to explain the motivations behind what I perceive as an unfair assault by Consumers Union, an organization we admired,” he added.

The May 2005 issue of Consumer Reports also sniffed at “the truth behind the accolades” such as the Seal of Truth, which is featured on ads for both the Ionic Breeze and also an air cleaner manufactured by Oreck. It reported that the Asthma and Allergy Foundation of America does not consider its Seal of Truth to be an endorsement, despite language on the seal the article says has a “laudatory tone.”

Through the foundation’s Seal of Truth program, Ionic Breeze air cleaners bear the seal, which states that the products “are proven to reduce airborne allergens and irritants including dust mite allergen, pet dander and cigarette smoke.”

The magazine also looked into another logo on Ionic Breeze ads, the Seal of Approval from the British Allergy Foundation. That organization, now known as Allergy UK, considers the seal to be an endorsement for the product; however, the magazine reports that Allergy UK’s Web site states “that its endorsement does not mean that a product will necessarily reduce an allergy sufferer’s symptoms.”

Findings of the Consumer Reports article spread like wildfire in news coverage all across the country, from radio and television to newspapers. Even another consumer-products company, the Holmes Group, wanted to grab some attention from the media frenzy over air cleaners.

“The public deserves to know the conclusions reached in the Consumer Reports story are not an indictment of the entire air cleaner category,” said Paul J. Powers Jr., senior vice president and general manager of the company’s Home Environment Division in an April 11 press release that sought to reaffirm consumers’ faith in HEPA-based products with fans, as opposed to ionic air cleaners.

The Holmes Group stressed the importance of clean-air-delivery-rate certifications from the Association of Home Appliance Manufacturers, which tests the efficacy of air cleaners in reducing tobacco smoke, dust and pollen from the air.

The Association of Specialists in Cleaning and Restoration last month announced that it would be on the lookout for a new executive director following the resignation of Larry Jacobson from the post.

Jacobson, who said his résumé highlights a career in “troubleshooting organizations,” was hired by ASCR International in 2000. Prior to that, he worked 1994–2000 as executive vice president for the National Association for Search and Rescue, and 1988–1993 as president of the Building Owners and Managers Institute.

Within his first month on the job for ASCR, Jacobson “discovered significant structural and legal problems requiring a complete overhaul of the organization.”

Several past presidents and members of ASCR’s Board of Directors spoke highly and candidly to IE Connections about Jacobson’s work for the association in separate interviews last month after an April 6 press release from ASCR announced his resignation.
The release stressed that the association would be developing a strategic plan to drive membership growth and expanding the association’s impact on the cleaning and restoration industry. It also stated that a search committee was being formed under the leadership of ASCR President Bill Lakin to locate a potential candidate who would succeed Jacobson as executive director.

“Larry was vital, critical to the organization of ASCR,” said Treasurer Jim Pearson in an April 12 phone interview. “When he came to us, there were some problems, and being an attorney, [he] was very instrumental in [getting] all of those legal issues tied together … and really did a lot of excellent work for us,” said Pearson, who is a past secretary for ASCR and currently serves as president of Americlean Corporation in Billings, Mont.
His comments supported those made by Lakin in the ASCR press release issued the previous week. “Larry Jacobson’s expertise is in building a solid foundation from which an association can grow, and he has done an excellent job in that capacity for our organization,” Lakin was quoted as saying. “ASCR today is much stronger than it was when Larry inherited it five years ago.”

ASCR said it expects the Board of Directors to develop a new strategic plan “by midyear” and that the plan would address a range of issues including membership growth, enhancing member benefits, maximizing efficiency and effectiveness, improving communications with members and non-members, and strengthening relationships with businesses that provide goods and services to the cleaning and restoration industry.

ASCR Secretary Graham Dick said in an interview that he is optimistic about the association’s future. “In looking for someone as an executive director for the future, it’s really about continuing with our mission, which is being one of the top-notch educational services in our industry and providing the network opportunities through some of the best conferences that the industry has to offer,” he said. “So, in that sense, it’s a refining of the same and continuing to do it better and better.”

Dick, who is the president of Genesis Restorations Ltd. in Canada, and others serving in high-level positions for ASCR International said that the among the innovative member benefits the association will be pursuing is the conversion of some educational opportunities into a Web-based learning format.

This ideal was announced to members at the organization’s latest convention, which was held March 15–19 in Palm Springs, Calif. Jacobson told IE Connections in an April 15 e-mail that the convention “was a great success.”

Others echoing that sentiment included Pearson, who said “the whole experience [in Palm Springs] was a beautiful thing – fabulous, the start of something big.”

“At the 2005 convention, we hosted meetings for four or five other organizations, one of them IICRC,” said Jacobson, referring to the Institute of Inspection, Cleaning and Restoration Certification.

“We certainly enjoyed having IICRC there,” said Pearson. “Organizations can disagree, but when it comes down to the personal one-on-one level, we all love each other.” He said the convention was a time for “renewing old friendships, meeting people we’d never heard about,” and the like.

Jacobson’s e-mail puts to rest speculation from some ASCR outsiders that Jacobson quit in disgrace because his views for ASCR – and the ASCR Foundation, which he created – were not aligned with members of the Board of Directors. He said, “Does my view of ASCR differ from others? I sure hope so because there are about 1,300 member companies and 16 board members [between ASCR International and the ASCR Foundation], and I can't believe we are all in agreement on every subject.”

His e-mail also said: “I completed my five-year agreement with ASCR, served through the 2005 convention and sent [Lakin] my letter of resignation at the end of the month (March 29), effective the last day of June. … I’ve completed that assignment, and ASCR is in real good shape. It’s time to move on to the next association.”

Candidates for the vacant executive director position with ASCR would be primarily evaluated on their ability to execute this new plan, the association said.

“Tremendous progress has been made in the past five years solidifying the ASCR’s financial situation and creating an infrastructure that will support the work of the organization,” Lakin said. “Now it is time to build on the progress we’ve made and take the ASCR to a much higher level. We appreciate [Larry’s] contributions and wish him well as he moves on to new challenges and opportunities.”

Two years after state lawmakers made Texas the first state in the country to adopt a program for the licensing of mold remediators and assessors, the topic has once again been introduced into the House of Representatives.

Applicants for mold licenses have for months been airing their complaints about a system they see as considerably flawed and in need of significant repairs.

The House has officially begun recommending fixes to the state’s licensing program. However, some say the solutions lawmakers have prescribed would do little to address problems like eligibility requirements.

One mold-remediation industry source, who asked not to be identified by name, said the legislative solutions being considered “are like putting a Band-Aid on a torn aorta.”
He and others who describe themselves as having worked in mold remediation for long enough to see the unregulated mold rush come and go are now subject to the state law that requires them to attend a 40-hour preparation class as the first part of the program under which they apply for licenses.

They say they were surprised by the number of people who had qualified for the preparation classes but were obviously newcomers to mold. “These are people from full-service restoration companies who had never heard of NADCA,” said one longtime mold remediator applying for the Texas license, referring to the National Air Duct Cleaners Association. “These are water-damage people who ought to know things like that.”
The 40-hour class prepares applicants for the type of questions they will face on the exam. “All you have to know on the exam are regulations and the law,” one person reported to IE Connections after attending the class. The applicant asked not to be named.

The Texas legislature set up the mold licensing program in 2003 to protect consumers from unscrupulous companies and people who would take advantage of them. But the applicant said he thinks the program doesn’t quite hit the spot. “I don’t think Texas has benefited at all from this licensing program,” he said.

Others in the state and elsewhere have criticized the fact that licensing fees are required. Critics of fees say that remediation and assessment contractors pass on their cost to be licensed to consumers, hiking the already high cost of remediation.

“It’s made remediation more expensive for the home owner and any businesses that needed it,” said Greg Long of TPV Group, based in Waco, Texas.

Under the current fee structure, a two-year license costs a mold remediation contractor $510 and a mold remediation company $1,030. Fees are also required for mold remediation workers, and mold assessment technicians, consultants and companies, as well as mold analysis laboratories, mold training providers.

In addition, the state charges $27 for a residential mold remediation notification and $103 for a nonresidential mold remediation notification.

Proponents of the fees say they are necessary to fund the licensing program. A portion of the fees – anywhere from $2 to $30 – is assessed to defray the cost of a new system by which applicants would be able to pay for and renew professional licenses online.
However, some in Texas suspect that the regulations on mold licenses are so cumbersome that the number of licensed contractors may not reach expected numbers.

Already, some in Texas have expressed that there are fewer than expected licensed professionals in the field of mold. IE Connections received a number of reports this year from applicants stating that few taking the state-mandated exams are passing them.
“I think we are seeing a slight improvement in the pass rate, but they are still not up to where we think they should be,” said Richard Bays, assistant commissioner for regulatory services with the Department of State Health Services, responding by e-mail April 19 to questions posed by IE Connections.

“For the most recent two weeks, there were 30 persons that took exams. Of those, 18 passed, which is 60 percent. The contractor exam had 14 of 24 passing [over 58.3 percent], and the consultant exam had four of five passing [80 percent],” said Bays.
He also said one assessment technician exam was given but did not indicate whether it resulted in a passing or failing grade.

“We have not done an analysis of any improvements since the inception of required training that began on Jan. 1,” said Bays.

The low passing rates have apparently prompted concern within the office of Rep. Elliott Naishtat, whose bill in 2003 required mold licenses and named the Texas Department of Health as the entity that would create specifics to put the program in place the following year.

“There has been some concern about the low passing rate. The Department of Health offered several explanations, one being that some people took the test without studying for it because they had been remediating mold for some time,” said Dorothy Browne, chief of staff under Naishtat, responding by e-mail to questions posed by IE Connections.
“The Department is considering lowering the passing grade by rule when the session is over,” she added. But she said Naishtat’s office did not consider filing a bill to change the situation.

A drop in the passing grade from 80 percent to 70 percent would be required by House Bill 2746. It is the most significant change to the Texas mold licensing program currently offered in either chamber of the state legislature.

If HB 2746 is signed into law, the lower score would be reflected in the Texas Occupations Code, which does not currently specify a passing grade, and the measure would go into effect Sept. 1.

The currently observed 80 percent passing score comes from the Texas Administrative Code. That code was last amended in May 2004 when rules for the mold licensing plan developed by the Texas Department of Health were adopted.
Asked whether a 10-point decrease in the passing grade should be viewed as lowering the bar in an effort to boost the passing rate, Bays replied, “It’s not a question of lowering the bar to increase the pass rate. It is a question of what level of score would show minimum competency.

“Traditionally,” he continued, “we all grew up and it has become a standard that 70 percent is passing or minimum competency. But the Board of Health, when it approved the rules for mold, established 80 percent as the competency measure. We had agreed to reevaluate the passing score after the legislative session through the rules revision process.”

Rep. Joe Deshotel, who filed HB 2746 on March 10, did not respond by deadline to questions about his legislation and other concerns of the mold licensing program, nor did a staffer in his office.

The House Committee on Licensing and Administrative Procedures reported favorably on Deshotel’s bill April 6 without amendments.

Two other pieces of legislation are currently pending that would amend provisions of the mold remediation and assessment law. These two bills, introduced by Naishtat, deal with very specific facets of the mold licensing program.

The first of them, HB 74, exempts school district employees from rules on conflicts of interest that prohibit people and companies from performing assessment and remediation on the same project.

The rule regarding conflicts of interest currently applies to school district employees, but HB 74 would exempt them “because school districts are highly unlikely to defraud themselves,” said Browne. “They will still be required to have people trained and licensed to do the work, but the licensed assessor and the remediator will be able to work on the same in-house project.”

HB 74 was filed Nov. 8, 2004, and passed the House in a vote March 23. It is currently in the hands of Senate committees.

Naishtat’s other bill, HB 1328, would tweak some language added to the state Insurance Code in September 2003. The entire purpose of the bill is to add three words – “with reasonable certainty” – to a code that prohibits insurers from denying coverage on remediated properties.

The modified Insurance Code would specify that an assessor “must establish with reasonable certainty that the underlying cause of the mold at the property has been remediated.” Adding these words corrects a contradiction between the state’s Occupations Code and Insurance Code, said Browne.

HB 1328 was filed Feb. 18 and passed the House in a vote April 6. It is currently in the hands of Senate committees.
 

Today’s Existing Asbestos Concerns Contractors
J. Tom Wise
President
Wise Consulting and Training
Reno, Nev.

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.”

J. Tom Wise is president and technical director of Wise Consulting and Training, a regionally recognized environmental consulting firm specializing in building science and building-related environmental issues. His environmental experience began in the late 1980s, when he established the environmental division of an engineering firm, and he has since devoted his time exclusively to environmental consulting and training. Wise has been involved in over 4,000 environmental projects in eight states and has authored and led environmental training courses for asbestos, lead and fungal remediation. He can be reached by e-mail at tom@wisecandt.com or by phone at (775) 827-2717.