In a prior post (Ohio EPA Asbestos Rule Changes Could Prove Costly), I discussed Ohio EPA rule change to the definition of friable asbestos. As discussed in the prior post, Ohio EPA added a single sentence to definition of "friable asbestos" appearing in Ohio Administrative Code Rule 3745-20-01. The sentence states:
Any category I or category II asbestos containing material that becomes damaged from either deterioration or attempts at removal or abatement resulting in small fragments the size of four square inches or less shall also be considered friable or RACM.
It appears that the Ohio EPA rule change was triggered by the fact is lost in Court over this very issue- whether small pieces of category I ACM were "friable asbestos" triggering NESHAP management regulations. Not only did Ohio EPA lose at the trial court level, it now has also lost on appeal.
A Battle of Experts
The appellate court decision was issued March 30th in State of Ohio v. Titan Wrecking & Environmental LLC. The case involved the removal of vinyl floor tile in a Cleveland School prior to demolition.
The issue was whether Titan’s method of removal (use of a bobcat to pull up the tile) caused the tile to become "regulated asbestos containing material" (RACM) and subject to asbestos regulations (the NESHAP regulations). State experts asserted at trial that the vinyl floor tile was rendered friable and/or that it had been subject to grinding by Titan’s removal activities and, as a result, Titan should have complied with the emission control and disposal procedures set forth in the Ohio Administrative Code.
Ohio EPA asserted that contractors cannot deliberately cause ACM tile to become friable by removal. That the tile should have been removed intact and remain that way all the way through disposal. The fact the tile was "broken into small pieces…some pieces smaller than a dime" meant it had become friable.
Titan’s expert said U.S. EPA had removed the term "broken" in prior guidance. Current EPA guidance says the tile must be "crumbled, pulverized, or reduced to powder" to be considered friable, not just broken.
The Court said it weighed the evidence and the testimony of the experts and agreed with Titan’s expert (Wayne Ingram- Testing Services International) The Court of Appeals refused to overturn the trial court’s decision that broken vinyl floor tile was not enough evidence to conclude it had become friable.
After Losing in Court Ohio EPA Changes the Rule
As you can see from the description of the case, the issue really came down to whether broken pieces of floor tile triggered asbestos regulations. Since Ohio EPA lost based on expert witness testimony and a review of current EPA guidance, Ohio EPA decided to amend the rule to specifically add language incorporating their preferred interpretation.
As discussed in the prior post, the rule change could prove costly for contractors who typically preferred removing floor tile or other ACM prior to demolition.