A CASE STUDY

Because of the conflict of interest that can arise when a testing agency works directly for an abatement contractor, California law - Business and Professions Code 7187 -  specifically prohibits such an arrangement. 

In 2007/2008, Ellis was called to an 11-story apartment complex in Beverly Hills.  That project included the gutting of interior walls and the complete removalof all beige-colored asbestos fireproofing from every floor of the building. 

Complication #1:  The abatement contractor performing the removal, for a very small additional cost, offered to ALSO retain a testing agency (not Ellis) to run “clearance sampling” on each floor.  The Owner agreed to this, probably not knowing it was in violation of state law. 

Not surprisingly, every floor passed, the first time.  Moreover, during the project the building Owner did not request that that company (or any other company) perform any sort of pre-abatement or post-abatement visual inspections or air monitoring.  In short, the entire multi-million-dollar abatement project was performed on the “honor system,”  with the Owner trusting the abatement contractor to do a complete and thorough job. 

Complication #2.  The abatement contractor was ALSO hired to re-spray all structural steel with new, blue-tinted, non-asbestos fireproofing.  Remember now, no visual inspection of the abatement was ever performed! - only “air clearance monitoring.”  So there was no record or proof that all fireproofing had been removed.  Nevertheless, the abatement and re-fireproofing project was completed and the abatement contractor was paid.  The general’s subcontractors moved in to begin installation of new electrical, walls, floors and ceilings.

Soon after that, it all hit the fan.  

During the second week of new construction, welders had to remove sections of the new fireproofing from steel columns, so that they could weld on new seismic bracing to the original steel.  This created debris at each removal point.  Laborers washed the debris out onto the street with garden hoses.  A neighbor noticed the fireproofing being washed down the gutter and into storm drains, and lodged a complaint with the local AQMD and the Regional Water Quality Control Board. 

In Los Angeles, the South Coast Air Quality Management District is quite active, and responded quickly.  They identified asbestos in the fireproofing debris that was being washed down the street. 

But all the asbestos was claimed to have been removed, right?  What could have happened?  We’re not sure, but we know what happened next. 

The General Contractor was given a Notice to Comply.  In this case, it was an order to stop all work until the source of the contamination could be identified and corrected.  The GC looked at the areas of fireproofing that the welders had been removing.  He didn’t like what he saw.  At almost every location, there was visible evidence of the original, beige-colored, asbestos fireproofing still present under the newer, blue-tinted, non-asbestos material.

At this point the GC retained legal advice, notifying the Owner of an environmental exposure risk to all trades currently working in the building.  The Owner, forced to respond, contacted and then contracted Ellis Environmental to re-survey the entire building.  This was our first look at the site.  We took approximately 90 samples of fireproofing from various locations in the building.  Approximately 45 of these contained significant amounts of asbestos.

The original abatement contractor was invited to leave the site.  Immediately.  Legal proceedings against that company, and the testing agency that had falsely provided air “clearances” came soon after.

Meantime, Ellis was retained to manage the RE-ABATEMENT of the entire 11-story building.  But this time, and acting as the Owner’s representative, Ellis remained on site to perform visual inspections at each step of the re-abatement process.  When the project was complete, we signed off on it, area by area and floor by floor.  The Owner now had solid documentation, backed by Ellis’ General Liability and Errors-and-Omissions insurance policies, that all asbestos fireproofing had actually been removed or (in a few inaccessible areas) enclosed permanently.

We recently finished giving our depositions in this case.  But my goodness . . . such a waste of time, materials, labor and money.  It didn’t have to go that way, and we offer this real-world experience to any who would consider first hiring an abatement contractor, and then allow them to conduct their own clearance monitoring.   Whether or not you retain Ellis or another firm, I hope you’ll involve a CAC in your next abatement project.  

Ellis provides the necessary sampling, specifications, monitoring, inspections and clearances to maintain compliance with Cal-OSHA 1529, SCAQMD Rule 1403, and B&P 7187.   Our total fees are always offset by the fact that your abatement project is completed on time and with liability risk reduced or eliminated.  

This is what we do best.  

Duane E. Behrens, President     Cal-OSHA Cert. #92-0226     CDPH #7914 (Lead) 

From B&P 7187:

"It is the intent of the Legislature in enacting this section to make certain that the asbestos-related work performed by a consultant, including, but not limited to, clearance air monitoring, project design, and contract administration, is performed in a manner which provides for independent professional judgment undertaken without consideration of the financial or beneficial interest of the contractor."