Toxic Power Part 2: Asbestos and the Law
For as long as human beings have been telling one another stories, there have been stories about miracles. In many of those tales weaved by storytellers, miracles are not free but can often exact a heavy price.
It is not without reason, and a fair bit of irony, that asbestos was once dubbed “the miracle mineral.”
By Gordon Hopkins
A salvage company contracted with the City of Fairbury in 2022 to remove massive turbines, generators and other obsolete machines from the municipal power plant building. To that end, Industrial Engineering Solutions (IES) recruited a number of young men, all local to the area, as subcontractors.
Moving those machines required the cutting through the asbestos insulation wrapped around pipes and surrounding the machines and kept the tremendous amount of heat created by the production of electricity at bay.
Those subcontractors allege they were never told that the insulation contained asbestos. They have claimed that they spent the better part of two months cutting up asbestos and breathing in the dust produced without wearing respirators or any other protective gear.
They further allege the insulation was not properly disposed of in accordance with EPA (Environmental Protection Agency) guidelines but simply bagged and “thrown away” like ordinary trash.
These revelations have raised a number of questions throughout the community.
What Is Asbestos?
First of all, despite its appearance, asbestos is a mineral. It is a lightweight, fibrous material that, depending on the type, can appear light and feathery, almost like cotton or even eiderdown. It can be woven into all manner of materials. Nevertheless, it is a naturally occurring mineral that is mined, not manufactured.
The quality that earned asbestos the moniker, “the miracle mineral,” was its resistance to heat and flame, as well as electricity and chemical corrosion.
Archaeological evidence shows asbestos was used as early as 2500 B.C. Use of asbestos increased dramatically when it began to be mined commercially in the 1870’s during the Industrial Revolution. The substance found its way into insulation, of course, but also clothing, protective gear and pretty much anything that needed to be fire retardant.
For example, in the early 20th century, theaters were fire hazards because of the use of flames to light the stage before the advent of electric lighting. Theaters therefore used fireproof drop curtains made from asbestos fibers.
Asbestos was a key ingredient in all manner of building materials, including floor and ceiling tiles, siding, roofing shingles and drywall. According to Constructionomics, a construction industry publication, “In 1899, a chemist named Ludwig Hatschek unveiled Eternit, the first combination of asbestos and cement.”
There was also spray-on asbestos fireproofing materials that could be applied as buildings were being constructed, such as the World Trade Center in New York City.
It is worth noting that the spray-on material was only used in the first 40 floors of the north tower. According to the Mesothelioma Center, an organization that advocates for mesothelioma patients, “Amid construction, the builders discontinued using asbestos because stricter regulations on the mineral were expected soon.”
Such spray-on asbestos products were banned by the EPA in 1973.
The Mesothelioma Center estimates between 410,000 to 525,000 people were exposed to a toxic dust containing asbestos when the World Trade Center tower collapsed on September 11, 2001, including “more than 90,000 workers involved in the rescue, recovery and cleanup efforts.”
What Are the Health Risks of Asbestos?
The man most credited with making the health hazards of asbestos public in the U.S. is science writer and investigative journalist Paul Brodeur, who wrote a series of articles for the New Yorker, beginning in 1968 with “The Magic Mineral.”
The Mesothelioma Center describes the disease that is their focus as, “a deadly cancer that affects the smooth, protective tissue covering the lungs, abdomen, heart and testes. The primary cause of mesothelioma is exposure to asbestos fibers and dust, usually through occupational exposure. Doctors treat mesothelioma with surgery, chemotherapy, immunotherapy and radiation,” and notes, “Life expectancy after diagnosis is 12 to 21 months with treatment. But some survivors have lived two, three or more years beyond that life expectancy.”
Per the American Cancer Society, “Mesotheliomas typically take a long time to develop. The time between first exposure to asbestos and diagnosis of mesothelioma is usually 30 years or more. Unfortunately, the risk of mesothelioma does not drop with time after exposure to asbestos. The risk appears to be lifelong.”
Mesothelioma is not the only disease associated with asbestos. Exposure to asbestos also increases the risk of other lung cancers.
Then there is asbestosis; i.e., diffuse interstitial pulmonary fibrosis,which is not a cancer but is a chronic lung disease. As with the other conditions, it is caused by inhaling asbestos fibers. The Mayo Clinic notes, “Prolonged exposure to these fibers can cause lung tissue scarring and shortness of breath. Asbestosis symptoms can range from mild to severe, and usually don’t appear until many years after initial exposure.”
While there is no safe amount of asbestos, the likelihood of developing asbestos-related diseases increases with the amount of exposure.
What Were Working Conditions Like in the Power Plant?
According to the EPA, “Asbestos fibers may be released into the air by the disturbance of asbestos-containing material during product use, demolition work, building or home maintenance, repair, and remodeling. In general, exposure may occur only when the asbestos-containing material is disturbed or damaged in some way to release particles and fibers into the air.”
This is why the EPA requires the use of respirators when working with asbestos.
FJN has identified several Jefferson County residents who were hired by IES as subcontractors to remove equipment and clean out the power plant building. They have asked to remain anonymous on the advice of legal counsel. FJN spoke to their attorney, Robert Bryant of Cada, Cada and Jewson Law of Lincoln, in August of 2023. He explained that he did not want his clients to say anything that might jeopardize a possible future claim.
FJN did not speak to those workers directly but submitted several written questions to them as a group. Their written answers were then returned to FJN, with identifying information redacted by their attorney.
Question: “Were you aware that there was asbestos in the building?
Answer: “No we were not and in-fact we were told multiple times that there wasn’t asbestos in the building.”
Question: “Was the insulation around the pipes and equipment removed and disposed of in any special manner or was it just removed, cut up and thrown away like ordinary trash?”
Answer: “We were told to hammer it off the pipes, shovel it into bags, and put (it) in the dumpsters from (redacted) with the regular trash. The bags would break open and it was all over the ground outside and (sic) well as everywhere inside the building. We all asked on several occasions if this was asbestos and were all told NO.”
According to the NDEE (Nebraska Department of Environmental and Energy), “RACM (Regulated Asbestos-Containing Material) must be transported by an asbestos trained representative in a marked vehicle and disposed of in a permitted Municipal Solid Waste (MSW) landfill.”
Not all permitted MSW landfills accept RACM.
Question: “Were you given any warnings about working inside the building?”
Answer: “No warnings were given – (redacted) actually stayed inside the building in one of side rooms because he was asked by (redacted) to stay on site for security reasons.”
Question: “Was the building kept sealed during the demolition or was it left open?”
Answer: “No it was all open garage doors and windows. There was one day that we were hammering the stuff off of the pipes that there was so much white dust in the building and outside on the ground we couldn’t see or breathe. We all had problems breathing and were sick for 2-3 (two to three) weeks with chest pains, sever (sic) coughing and throwing up. We were all told that it wasn’t asbestos and it was ok to keep working. Some of us went to the doctor.”
Question: “Did you wear a respirator when inside the building?”
Answer: “Not at first – we only got offered respirators after a month of working there. (Redacted), Midwest Torching & Maintenance, came to work in the plant a month after we started and he provided us with respirators and hardhats.”
Midwest Torching & Maintenance was the company hired by the City of Fairbury to complete demolition of the oil tank after IES left.
One subcontractor, not represented by an attorney, was willing to speak to FJN directly. He said, “There was two guys. One was named Jim and one was named James. Jim was like an older gentleman. He’s probably in his 60s, I imagine. He was supposed to be, like, the guy that had done this 30 plus different times, going to different power plants throughout the United States and decommissioning them and stuff. And then James was the younger guy that was, like, the one actually paying for all the work to be done.”
The unrepresented subcontractor said there was a point when he raised concerns about the possibility of asbestos, “They had us go down in and start cutting the jacketing off of these pipes. And as soon as I ran a knife through it, I was like, nope.”
He brought his concerns to IES, “And we get up to the office. And Jim, the older guy comes in. And he’s like, ‘Alright, I’m just letting you know right now. Ain’t no asbestos in this building. Anything that I’m telling you to do is because I know that there is no asbestos there.’”
“And he’s like, ‘If you want to worry about that, and you’re not f*g thinking that I’m telling the truth, then whoever doesn’t want to work, leave now.’ And everybody’s wanting money. Because obviously, that’s why we’re there, trying to make money,” he said.
The subcontractor was still concerned but said, “Well, I need the money.”
“If there was any jacketing on any piping, they would bring it all, using the cranes, bring it all to the top floor and then it would get set on the main floor and then somebody would come by and cut it all up. And it would just sit on the floor until somebody came by and scooped it up, put it into bags, put in just regular black bags, not asbestos bags,” he said.
When asked where the bags ended up, he said, “In the trash.”
Asbestos or not, the amount of dust being created by the work was extremely heavy. So, the subcontractor said, “And we get on the internet and get masks ordered for everybody have them, like, express delivered, so they’ll be here the next day.”
“They needed a physical address, so I told them, just send them to my house. I’ll bring them down soon as they show up tomorrow. I’ll be there because I have to come in late because my son has physical therapy. I have a little boy who has physical therapy on Wednesdays,” he said.
However, the next day, the subcontractor said he received a text from one of his co-workers, “Well, I guess since you don’t want to come into work and you don’t you think that you can just come in whenever you want. The boss says we’re just going to let you go.”
“And I was like, ‘Well, I’ll tell you this right now. I’m not leaving this power plant until I get the money that I’m owed.’,” said the subcontractor.
He was paid but noted not all of his coworkers were, “Seven days later, they (IES) skipped out.”
The other subcontractors confirmed, through their attorney, that they were not paid for their final weeks of work.
FJN spoke to residents who live in the vicinity of the power plant and witnessed the operation. They confirmed the large garage door on B Street was kept open for much of the work. Neighbors who saw the operation said the workers they saw were not wearing respirators or masks, at least part of the time. One said, “I can’t say that they never were, but I just don’t really remember seeing anybody wearing masks.”
Did the City Know There Was Asbestos in the Power Plant?
Emails obtained by FJN indicate some city staff knew about the presence of asbestos in the city’s municipal power plant before the activities of IES left the building contaminated.
One of those staff members is the line superintendent. Another is a former city administrator who, FJN recently learned, signed an agreement prior to his departure not to discuss city matters.
The power plant was shut down on February 28, 2021, because the city’s insurance carrier, Traveler’s Insurance, canceled coverage for the plant, citing “obsolete equipment.”
In 2022, newly-hired city administrator, Jacob Matthews, recommended selling the equipment. He said he believed the equipment could bring in as much as $120,000.
Matthews emailed Fairbury Line Superintendent Nate Francis on July 28, 2022, “We actually need to put the equipment in the powerplant (sic) up for auction, but we can set the reserve to ensure we get the price we want.”
Francis opposed going the auction route, responding, “I don’t really see that working out,” and calling the removal of the steam turbine a “major undertaking.”
The superintendent wrote, “There is asbestos in the plant all over the place. We need a company that deals with scrapping out powerplants (sic).”
Emails between IES and Francis also indicate both were aware of the presence of asbestos. An email from Francis to IES dated August 15, 2022, said, “James, I know I discussed with you, what if some of it may be attached to the boiler or pipes going around the turbine. What do you do about that part?”
IES responded, “And any asbestos has to be hazmatted that is around the turbine ring, we are responsible for that.”
When asked on October 1 of this year about what he saw when he visited the power plant, then Fairbury Mayor Brown reiterated that he did not know there was asbestos in the building, “I am not the contractor. My line superintendent is not the contractor. It was the contractor’s responsibility to know what is asbestos, not asbestos, and what precautions to take and to complete the job.”
Brown added, “I would not knowingly and willfully put people into a known dangerous situation.”
FJN asked Superintendent Francis if he informed the city of asbestos in the power plant. As of press time, he has not responded. FJN also reached out to City Attorney Kurth Brashear for a statement. He also has not responded.
Matthews now works as City Administrator for Lake City, Iowa. FJN reached out to him via email and asked if he ever informed the city about the asbestos. He responded, “I have previously and respectfully requested that you stop reaching out to me regarding matters involving the City of Fairbury. I must again emphasize that I have no comments to offer on Fairbury’s municipal affairs or any other matters pertaining to that city. I will not provide any statements from my official Lake City e-mail address for matters regarding other cities, nor will I ever provide any statements regarding a previous employer or anyone associated with previous employers.”
Matthews was let go from his job as city administrator without explanation after just 57 days on the job. The announcement came Friday, September 9, 2022. Matthews signed a “Separation Agreement And Comprehensive Waiver and Release,” which prohibits him from discussing city matters.
When asked how many employees have signed such a “Separation Agreement And Comprehensive Waiver and Release” in the last three years, Fairbury City Clerk Erin Reimer confirmed there was one, Jacob Matthews, who signed the agreement on October 27, 2022, a month-and-a-half after he had been fired.
Was the Building Tested for Asbestos?
While asbestos is common in older buildings, it only becomes a health hazard when it is friable, meaning crumbly and easily dispersed through the air. That is what happened to the asbestos in the power plant when workers cut up the insulation.
In February of 2023, an Asbestos Management Inspector, Eldon Hutchinson, conducted an asbestos inspection survey of the power plant at the request of Brown. A report was sent to the city on February 23. The report indicated a lab identified asbestos in all 23 samples the inspector took. Asbestos insulation was found on numerous pipes and in loose debris throughout the building.
FJN obtained the survey as part of a public records request. The city did not make it public. When asked why he did not inform the public about asbestos in the power plant, Brown said, on August 27, 2023, “For what reason? I would of assumed that IES notified their staff of it or the potential of it.”
Brown added, “City staff was notified.”
On April 26, 2023, the city put up sign at all entrances to the power plant building, requiring anyone who entered to sign a log sheet.
Was Any City Staff Exposed?
A representative of the Public Health Division of the Department of Health and Humans Services (DHHS), told FJN that a respirator is needed to protect against asbestos exposure, “Masks, for example an N95, will provide some level of protection. The problem with them is that they do not provide an airtight seal around the mouth and nose and could allow asbestos fibers to enter the lungs. Respirators with the proper cartridges, provide an airtight fit and filter out asbestos fibers. If the workers wore some sort of mask they had at least some form of protection. It would be impossible to determine what the fiber level was during the decommissioning of those pieces.”
On July 19, 2023. FJN asked Brown if any city staff had been inside the power plant without a respirator. He responded, “I could not tell you if they were or not.”
While the power plant no longer produces electricity, there is a control room that is still used on occasion. Whenever there is a power outage, city staff must enter the building to open and close breakers. Pumps for the city’s wells are also in the building’s basement.
Prior to the new protocols set in April of 2023, there was no requirement for city workers to wear respirators inside the building, although Brown doubted anyone had been inside.
“I can’t tell you if any city staff or what city staff was in the building before then,” said Brown. “There was no log sheet, and generally no reason to be in the building.”
The city also stores the Christmas decorations that are placed around the downtown square over the holidays in the power plant building. FJN asked for the names of the city workers that put up and took down the decorations last year. Brown answered, “I don’t have the names.”
FJN then emailed the city line department and asked for the name of those city workers. Line department reps did not respond but, the next day, Brown emailed FJN and asked the paper not to contact city staff again.
“I need to remind you that in the absence of the city administrator, I assume those duties. That includes the position of Public Relations Officer,” Brown wrote, “In order to provide accurate information for you to use, please refrain from questioning members of staff. If you do not feel like you are getting what you need out of me, then please use the public records request form online.”
In order to determine if any city workers have been inside the power plant unprotected, Brown said, “I would have to survey the staff. I would assume, someone, at some time, in the past history of the power plant, entered without a mask.”
FJN asked Brown if he intended to conduct such a survey, he responded, “For what reason why would I do that (sic)?”
Why Don’t They Sue?
When asked last year about the possibility of the city being sued, Brown responded, “Sue the city? Working as a subcontractor?”
While there was no mention of asbestos in the contract with IES, it does say IES will follow OSHA (Occupational Safety and Health Administration) “standards.” It was Brown’s contention that this made ensuring asbestos was properly handled IES’s responsibility and not the city’s.
According to the Mesothelioma Center, “It is now known that there is no clear safe level of asbestos exposure in terms of mesothelioma risk. Yet asbestos is still legal in the U.S. and nearly 200 countries around the world. And because the latency period between first exposure to asbestos and clinical disease is 20 to 40 years, thousands of people continue to be diagnosed with mesothelioma each year. Until asbestos has been completely eradicated, this alarming trend will continue.”
Other asbestos-related diseases can also take years, or even decades, to manifest. That latency period is why the attorney representing the subcontractors has taken no action at this time. Bryant told FJN, “I have not sent a demand (to the city) and do not presently plan to do so as no damages have been determined to this point.”
FJN asked for a legal opinion from Joe Lahav, attorney and legal advisor to the Mesothelioma Center. Lahav confirmed Bryant’s position, “With respect to asbestos exposure suffered by the locals hired by IES, any illness-related claims seem premature at this point. That is because no one – so far as I can tell – is sick as a result of the exposure. Typically, asbestos claims require damages (ex. asbestosis, lung cancer or mesothelioma). As you note, the illnesses often take years to develop. So, to the extent the locals get sick from this, it will likely be quite a while.”
In other words, most people exposed to asbestos cannot sue until they get sick.
Lahav pointed out he is not an environmental attorney. However, he told FJN, “From the facts presented, the city may have some liability related to the improper hiring of asbestos handlers/improper handling of the asbestos.”
Neither the center nor Lahav are involved in this matter.
Last year, FJN received a telephone call from a woman, who asked not to be identified on advice of an attorney. She said that her son had been one of those employed by IES to work in the power plant. She asked, “Who’s going to pay for all this? These doctor’s appointments? And what if he does have asbestos exposure? What happens then?”
When asked if her son or any of the other workers were sick, she said, “Not now, but four of them have been to a doctor. He told them they have to come back to be tested (for lung disease) every year for the rest of their lives.”
Earlier this month, she sent a text message to FJN, expressing her frustration with the city and the law, “There has to be away (sic) to sue the city for allowing the workers to be in there knowing it was a risk … negligent endangerment or something like that … and yes I will be talking to the lawyer.”
Asbestos was not the only hazard connected to the power plant. See Part 3: Oil, next week.
