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Asbestos: Five myths

5 Jul

In many respects asbestos has been a victim of its success.  In the early 20th century, asbestos was considered a wonder substance that had several uses and was very inexpensive.  The most common uses were as an insulator and as ingredient in building materials to provide a degree of fire resistance.  In many parts of the US with older building stock (e.g., Chicago), you can still find numerous residential buildings with asbestos siding and asbestos mixed into the plaster.  Many older commercial buildings still have asbestos containing plaster.  Asbestos is also resistant to chemical damage and was used very frequently in chemistry lab benches (yes, even your high school lab) and other surfaces that were in regular contact with corrosive chemicals.  Asbestos is also very effective at absorbing sound.  Many older, metal kitchen sinks have asbestos coating on the underside, not to provide insulation, but to minimize the noise from water hitting the sink.  As a result, asbestos was ubiquitous.

Unfortunately, it wasn’t until much later that efforts were taken to limit exposure to asbestos to minimize the risks of mesothelioma, a rare form of cancer caused by inhaling microscopic asbestos fibers.  In part, this was because there is a 20-30 latency period between the exposure to asbestos and the development of mesothelioma.  Another reason, at least for those not directly involved in the manufacturing of asbestos, was that it took years for asbestos containing materials to degrade sufficiently to release the asbestos fibers into the air and, it follows, for people to inhale these fibers.  Finally, information obtained during asbestos litigation established that many asbestos companies knew of the danger, but did not inform the public.

While almost everyone is familiar with asbestos, most people have misconceptions regarding asbestos.  Here are five of the most common:

1) Asbestos is banned.  Many asbestos containing products are still manufactured and legal to use.  US EPA banned asbestos products in 1989, but this rule was overturned in 1991.  Under the Toxic Substances Control Act, only the bans on corrugated paper, rollboard, commercial and specialty paper, and flooring felt as well as any new uses remain.  Under the Clean Air Act, spray applied asbestos is banned as well as asbestos for pipe insulation and block insulation on facility components (e.g., boilers), if the materials are either molded and friable or wet-applied (and friable after drying).  Under the Consumer Product Safety Act, asbestos in artificial fireplace embers and wall patching compounds is banned.

2) Asbestos must be removed.  In reality, asbestos can be remain in place or even be added to a building, see 1 above.  In many instances, the owners of buildings are required to conduct an asbestos study to determine the presence of asbestos containing materials, monitor it over time, provide appropriate legal notices, and train individuals who may be exposed to asbestos.

3) Building owners do not need to label asbestos containing materials.  In truth, not every asbestos containing item must be labeled, otherwise you could imagine a ridiculous situation requiring several thousand asbestos containing floor tiles in a building needed to be labeled.  That being said, the building owner does need to provide notice and can often bee done fairly unobtrusively in an entrance area.

4) I do not need to train my custodial staff.  Many levels of asbestos training exist and while custodial staff may not need high level training, they may need awareness training because they come into contact with asbestos.  For example, they may come across a broken floor tile or ceiling tile that contains asbestos.  It is also worth noting that if your custodial staff undertakes more than simple custodial actions and engages in maintenance, they may well need additional training.

5) The contract for my new construction guarantees there was no asbestos used.  Upon closer inspection, most architectural contracts state that no asbestos containing materials were specified for the project.  That is not to say that they were not used, it simply means they were not required to be used.  Again, as pointed out above, asbestos is not banned.

If you have questions about asbestos, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.



D.C. battle over EPA Administrator nomination & the future of the D.C. Circuit

10 Jun

Gina McCarthy was nominated to take over as US EPA Administrator over three months ago. Last month her nomination passed out of the Senate Environment and Public Works Committee to the full Senate for a vote. Needless to say, the leadership of EPA is a source of contention between Republicans and Democrats. As a result Republican senators have been delaying McCarthy’s confirmation vote.

Another set of less obvious nominations that may have even more significant environmental repercussions was made last week. President Obama nominated Robert Wilkins, Nina Pillard, and Patricia Millett for the US D.C. Circuit Court of Appeals. Since federal agencies are typically sued over proposed regulations in the D.C. Circuit, the D.C. Circuit is a prime battleground for US EPA regulations. In fact, these appointments may be especially important as federal judges are appointed for life, unlike agency administrators who typically last only as long as the President who nominates them, if that long. The judges whose change to Senior Status in the Court of Appeals created two of the three vacancies served for 25 and 26 years. The third vacancy was created when John Roberts was elevated to the Supreme Court. Currently, the D.C. Circuit has four judges selected by Republic Presidents (three judges selected by George W. Bush and one by George H.W. Bush and four judges selected by Democratic Presidents (three by Bill Clinton and one by Barack Obama).

If you have questions about these appointments or how to make your voice heard, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

What to do when EPA has sent you a violation notice.

31 Aug

During the course of my environmental practice, both at EPA and in private practice, I’ve seen too many regulated companies mishandle a violation notice, notice of violation, or finding of violation (terminology varying by agency and the division of an agency).  Companies have failed to respond, have provided an incomplete response, or have provided inaccurate information.  I have seen all of these permutations lead to administrative penalties (and associated legal and consulting costs) when no penalty was necessary.

Many regulated companies are under the mistaken impression that a violation letter is the end of the enforcement process.  That is incorrect.  In truth, EPA is still in the information gathering stage and has not made a decision whether to pursue an administrative penalty.  In addition, the agency enforcement team has a significant amount of enforcement discretion in determining whether the violations observed during an inspection warrant formal enforcement (i.e., a penalty).  Thus, the response to the violation notice is of crucial importance to the agency’s decision whether to pursue enforcement and should be treated as such.

Due to the significant legal and financial impact stemming from the response to a violation notice, this is the optimal time to engage an environmental attorney.  As an environmental attorney, we are best suited to understand how given facts do or do not constitute violations and can word responses most appropriately.  Furthermore, as a former EPA attorney, I have an excellent sense for how the agency decides to pursue formal enforcement and for which violations the agency decides to pursue a significant penalty.  As a result, I can tailor a response to a violation notice such that it minimizes the risk of formal enforcement.

If you have any questions regarding EPA violation notices, contact us at 773-609-5320, [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.



Stephen Thorn joining Chicago-Kent as adjunct law professor

30 Jul

Stephen Thorn is joining the Chicago-Kent School of Law as an Adjunct Law Professor.  He will be teaching the Advanced Legal Writing: Environmental Law course.

Nanotechnology and Environmental Law- A new blog topic

29 Jun

In light of numerous requests, we are adding nanotechnology as a new topic to our blog.  Please check back frequently for updates, add this blog to your RSS feed (under the favorites tab in Windows Explorer), or subscibe to our weekly e-mail updates (on the right of your screen).

Few new technologies have generated as much attention and buzz as nanotechnology.  The use of nanomaterials is proposed, or already in use, for medicines, electronics, biomaterials, pesticides, and numerous other applications.  While there is no universally accepted definition, nanotechnology or nanomaterials basically refers to ultra-small molecules, typically between 1 and 100 nanometers long in one dimension.  The utility of nanoparticles derives from their extremely small size, low weights, and large surface areas.  Nano-materials may be functionalized much as any other chemical.   (more…)

Stephen Thorn appointed to ISBA Environmental Section Council

18 Jun

Stephen Thorn has been appointed to the Environmental Law Section Council of the Illinois State Bar Association.  The Council evaluates and makes recommendations regarding existing and proposed legislation and regulations in the environmental law field.  The Council also monitors developments in the environmental law field and disseminates relevant information to other attorneys and business, industrial, government, and agricultural interests.

If you have any questions regarding the Council, contact us at 773-609-5320 or [email protected], or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.

Household Waste Drop-off Points and One-day Collection Events Under the Illinois Environmental Protection Act

12 May

The purpose of 415 ILCS 5/22.55, Household Waste Drop-off Points, is to improve the collection of waste from households by diverting certain wastes from the general household waste stream. The act provides for collection centers that can be located at commercial establishments, as well as allowing for the collection of waste in one-day collection events. Both types of collection are discussed in this post.

The first major section of the act allows retail establishments to collect certain types of household wastes from their customers. A household waste drop-off point is defined as “the portion of a site or facility used solely for the receipt and temporary storage of household waste.” 415 ILCS 5/22.55(b). A drop-off point is limited to accepting “pharmaceutical products, personal care products, batteries other than lead-acid batteries, paints automotive fluids, compact fluorescent lightbulbs, mercury thermometers, and mercury thermostats.” 415 ILCS 5/22.55(c)(1). However, the types of waste collected must be the same as those sold, distributed or dispensed by the facility. 415 ILCS 5/22.55(c)(2). By way of example, (more…)

California Green Chemistry Initiative

9 Mar

The California Department of Toxic Substances Control (DTSC) is currently redrafting the regulations to implement the Green Chemistry Initiative.  The Green Chemistry Initiative, passed in 2008, will require consumer chemical products to be examined for Chemicals of Concern (COCs) and possibly be reformulated to reduce or remove COCs.  Given the size of California’s economy and  the lack of action on revising the federal Toxic Substances Control Act, the Green Chemistry Initiative may have significant repercussions throughout the United States and entire world economy. (more…)